CHAPTER 32-01 General Provisions
32-01-01. Remedies — Classification.
Remedies in the courts of justice are divided into:
- Actions.
- Special proceedings.
Source:
C. Civ. P. 1877, § 11; R.C. 1895, § 5155; R.C. 1899, § 5155; R.C. 1905, § 6741; C.L. 1913, § 7329; R.C. 1943, § 32-0101.
Derivation:
Wait’s (N.Y.) Code, 1; Harston’s (Cal.) Practice, 21.
Cross-References.
Action for support of child, see N.D.C.C. ch. 14-08.1.
Action for spousal or child support, see N.D.C.C. ch. 14-08.
Administration of trust, see N.D.C.C. ch. 59-10.
Labor disputes and court proceedings therein, see N.D.C.C. ch. 34-08.
Special proceedings defined, see N.D.C.C. §§ 32-01-04, 32-32-01.
Notes to Decisions
- Certiorari.
- Contempt Proceeding.
- Criminal Prosecution.
- Disbarment Proceeding.
- Examination of Defendant before Trial.
- Foreclosure of Mortgage.
- Mandamus.
- Pretrial Conference.
- “Remedy” Defined.
- Sale of Real Estate of Decedent.
Certiorari.
Certiorari is a special proceeding. City of Fargo v. Annexation Review Comm'n, 148 N.W.2d 338, 1966 N.D. LEXIS 149 (N.D. 1966).
Contempt Proceeding.
A contempt proceeding is not remedial in its character and is not a special proceeding. State ex rel. Edwards v. Davis, 2 N.D. 461, 51 N.W. 942 (1892), decided prior to the enactment of §§ 5934 and 5954, Rev. Codes (1895) (see now N.D.C.C. § 27-10-01.1 et seq.).
Criminal Prosecution.
A prosecution for a public offense is an action. State v. Rozum, 8 N.D. 548, 80 N.W. 477 (1899), distinguished, State v. Dahms, 29 N.D. 51, 149 N.W. 965 (1914) and State v. Winbauer, 21 N.D. 161, 129 N.W. 97, 1910 N.D. LEXIS 153 (N.D. 1910).
Disbarment Proceeding.
A disbarment proceeding is a special proceeding. In re Eaton, 7 N.D. 269, 74 N.W. 870, 1898 N.D. LEXIS 58 (N.D. 1898).
Examination of Defendant before Trial.
An examination of defendant before trial is not a special proceeding. West Branch Pants Co. v. Gordon, 51 N.D. 742, 200 N.W. 908, 1924 N.D. LEXIS 72 (N.D. 1924).
Foreclosure of Mortgage.
The procedure to obtain the injunctional order against foreclosure of a mortgage by advertisement was not a special proceeding. Tracy v. Scott, 13 N.D. 577, 101 N.W. 905 (1904), decided prior to the enactment of § 7841, C.L. 1913 (see now N.D.C.C. § 28-27-02).
Mandamus.
Mandamus is a special proceeding. State ex rel. Dakota Hail Ass'n v. Carey, 2 N.D. 36, 49 N.W. 164, 1891 N.D. LEXIS 22 (N.D. 1891); State ex rel. Bickford v. Fabrick, 16 N.D. 94, 112 N.W. 74, 1907 N.D. LEXIS 30 (N.D. 1907).
Pretrial Conference.
As respects the right of appeal, a pretrial conference held under the statute is not a special proceeding, but is an episode in an ordinary proceeding. La Plante v. Implement Dealers Mut. Fire Ins. Co., 73 N.D. 159, 12 N.W.2d 630, 1944 N.D. LEXIS 50 (N.D. 1944).
“Remedy” Defined.
A “remedy” is a measure employed to enforce a right or to redress an injury, and includes civil actions or special proceedings. Petition of Ecklund, 67 N.D. 140, 270 N.W. 347, 1936 N.D. LEXIS 161 (N.D. 1936).
Sale of Real Estate of Decedent.
A petition to sell real estate of decedent to pay debts is a special proceeding. Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1914 N.D. LEXIS 149 (N.D. 1914).
32-01-02. Action defined.
An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.
Source:
C. Civ. P. 1877, § 12; R.C. 1895, § 5156; R.C. 1899, § 5156; R.C. 1905, § 6742; C.L. 1913, § 7330; R.C. 1943, § 32-0102.
Derivation:
Wait’s (N.Y.) Code, 2; Harston’s (Cal.) Practice, 22.
Cross-References.
“Action” defined in Criminal Code, see N.D.C.C. § 12.1-01-04 (definitions of “official action” and “official proceeding”).
“Action” defined in Uniform Commercial Code, see N.D.C.C. § 41-01-09.
Notes to Decisions
- Administration of Decedent’s Estate.
- Appeals.
- Consent to Dismissal.
- Criminal Prosecution.
- Foreclosure of Mechanic’s Lien.
- Form of Action Irrelevant.
- Mandamus.
- Repossession of Property.
- Tax Intercept Procedure.
- Workmen’s Compensation.
Administration of Decedent’s Estate.
A petition to sell real estate of decedent to pay debts is a special proceeding. Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1914 N.D. LEXIS 149 (N.D. 1914).
In the administration of a decedent’s estate where vendor, who had entered into a written contract, died before completing it, and the party entitled to the conveyance had paid or was ready to pay the purchase price, the enforcement of the contract was a special proceeding. FOX v. FOX, 57 N.D. 368, 221 N.W. 889, 1928 N.D. LEXIS 140 (N.D. 1928).
Appeals.
Normally, appeals were allowed, pursuant to N.D.C.C. § 28-27-02, in “actions,” as actions were defined in N.D.C.C. § 32-01-02 and which were generally commenced by the issuance of a summons, as recognized by N.D. R. Civ. P. 3. However, appeals were also allowed from final orders entered in special proceedings, N.D.C.C. § 28-27-02, and the power to subpoena was not an ordinary proceeding but was a special proceeding, which meant that the state human services agency had a right to appeal from the administrative subpoena that it served on the state insurance reserve fund. State v. N.D. Ins. Reserve Fund, 2012 ND 216, 822 N.W.2d 38, 2012 N.D. LEXIS 230 (N.D. 2012).
Consent to Dismissal.
A party may consent to the dismissal of his action without the consent of his attorney. Paulson v. Lyson, 12 N.D. 354, 97 N.W. 533, 1903 N.D. LEXIS 45 (N.D. 1903).
Criminal Prosecution.
A prosecution for a public offense is an action. State v. Rozum, 8 N.D. 548, 80 N.W. 477 (1899), distinguished, State v. Dahms, 29 N.D. 51, 149 N.W. 965 (1914) and State v. Winbauer, 21 N.D. 161, 129 N.W. 97, 1910 N.D. LEXIS 153 (N.D. 1910).
Foreclosure of Mechanic’s Lien.
An action to foreclose a mechanic’s lien is a civil action. McCormack v. Phillips, 34 N.W. 39, 4 Dakota 506, 1887 Dakota LEXIS 15 (Dakota 1887).
Form of Action Irrelevant.
The words “action” and “proceeding”, as used in this section, include every form of action, whether founded in tort or contract. Greenleaf v. Minneapolis, S. P. & S. S. M. Ry., 30 N.D. 112, 151 N.W. 879, 1915 N.D. LEXIS 97 (N.D. 1915).
Mandamus.
Mandamus is a special proceeding. State v. Fabrick, 16 N.D. 94, 112 N.W. 74 (1907).
On an appeal from an order and judgment of the district court in a mandamus proceeding, the appellate court will not consider questions or review a question not raised in nor considered by the trial court. State ex rel. Chamberlain v. Johnstone, 65 N.D. 727, 262 N.W. 193, 1935 N.D. LEXIS 160 (N.D. 1935).
Repossession of Property.
The repossession by the vendor of a truck covered by a conditional sales contract without legal process is not an “action” within the meaning of the statute. McLean v. Underdal, 73 N.D. 74, 11 N.W.2d 102, 1943 N.D. LEXIS 63 (N.D. 1943).
Tax Intercept Procedure.
Attempted collection of child support arrearages through the tax intercept procedures is not an ordinary proceeding in a court of justice, but rather is in the form of an administrative proceeding conducted before the agency. Therefore, the statute of limitations imposed by N.D.C.C. § 28-01-16 does not apply to the tax intercept procedure. Guthmiller v. North Dakota Dep't of Human Servs., 421 N.W.2d 469, 1988 N.D. LEXIS 86 (N.D. 1988).
Workmen’s Compensation.
A proceeding under the Workmen’s Compensation Act by a claimant against the bureau is a special proceeding. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).
Collateral References.
Action 1.
1 Am. Jur. 2d, Actions, § 4.
1A C.J.S. Actions, §§ 1, 2, 4, 5, 27-29.
32-01-03. Actions — Classification.
Actions are of two kinds:
- Civil.
- Criminal.
Source:
C. Civ. P. 1877, § 14; R.C. 1895, § 5158; R.C. 1899, § 5158; R.C. 1905, § 6744; C.L. 1913, § 7332; R.C. 1943, § 32-0103.
Derivation:
Wait’s (N.Y.) Code, 4; Harston’s (Cal.) Practice, 24.
32-01-04. Special proceeding defined.
A special proceeding is any remedy other than an action.
Source:
C. Civ. P. 1877, § 13; R.C. 1895, § 5157; R.C. 1899, § 5157; R.C. 1905, § 6743; C.L. 1913, § 7331; R.C. 1943, § 32-0104.
Derivation:
Wait’s (N.Y.) Code, 3; Harston’s (Cal.) Practice, 23.
Notes to Decisions
Administration of Decedent’s Estate.
A petition to sell real estate to pay debts of decedent is a special proceeding. Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082, 1914 N.D. LEXIS 149 (N.D. 1914).
Proceeding to enforce written contract of vendor who died before he completed it, the party entitled to the conveyance having paid or being ready to pay the purchase price to the administrator, was a special proceeding. FOX v. FOX, 57 N.D. 368, 221 N.W. 889, 1928 N.D. LEXIS 140 (N.D. 1928).
Contempt Proceeding.
A contempt proceeding is not remedial in its character and is not a special proceeding. State ex rel. Edwards v. Davis, 2 N.D. 461, 51 N.W. 942 (1892), decided prior to the enactment of §§ 5934 and 5954, Rev. Codes (1895) (see now N.D.C.C. § 27-10-01.1 et seq.).
Mandamus.
Mandamus is a special proceeding. State ex rel. Dakota Hail Ass'n v. Carey, 2 N.D. 36, 49 N.W. 164, 1891 N.D. LEXIS 22 (N.D. 1891); State ex rel. Bickford v. Fabrick, 16 N.D. 94, 112 N.W. 74, 1907 N.D. LEXIS 30 (N.D. 1907).
On an appeal from an order and judgment of the district court in a mandamus proceeding, the appellate court will not consider questions or review a question not raised in nor considered by the trial court. State ex rel. Chamberlain v. Johnstone, 65 N.D. 727, 262 N.W. 193, 1935 N.D. LEXIS 160 (N.D. 1935).
Workmen’s Compensation.
A proceeding under the Workmen’s Compensation Act by a claimant against the bureau is a special proceeding. Gotchy v. North Dakota Workmen's Compensation Bureau, 49 N.D. 915, 194 N.W. 663, 1923 N.D. LEXIS 42 (N.D. 1923).
Collateral References.
Action 1.
1 Am. Jur. 2d, Actions, § 3.
1A C.J.S. Actions, §§ 1, 2, 4, 5.
32-01-05. Criminal action defined.
A criminal action is one prosecuted by the state as a party against a person charged with a public offense for the punishment thereof.
Source:
C. Civ. P. 1877, § 15; R.C. 1895, § 5159; R.C. 1899, § 5159; R.C. 1905, § 6745; C.L. 1913, § 7333; R.C. 1943, § 32-0105.
Derivation:
Wait’s (N.Y.) Code, 5.
32-01-06. Civil action defined.
A civil action is any action other than a criminal action.
Source:
C. Civ. P. 1877, § 16; R.C. 1895, § 5160; R.C. 1899, § 5160; R.C. 1905, § 6746; C.L. 1913, § 7334; R.C. 1943, § 32-0106.
Derivation:
Wait’s (N.Y.) Code, 6.
32-01-07. Process in civil action.
All process in civil actions shall run in the name of the state of North Dakota.
Source:
C. Civ. P. 1877, § 16; R.C. 1895, § 5160; R.C. 1899, § 5160; R.C. 1905, § 6746; C.L. 1913, § 7334; R.C. 1943, § 32-0107.
Derivation:
Wait’s (N.Y.) Code, 6.
32-01-08. Civil and criminal remedies not merged.
When the violation of a right admits of both a civil and a criminal remedy, the right to prosecute the one is not merged in the other.
Source:
C. Civ. P. 1877, § 17; R.C. 1895, § 5161; R.C. 1899, § 5161; R.C. 1905, § 6747; C.L. 1913, § 7335; R.C. 1943, § 32-0108.
Derivation:
Wait’s (N.Y.) Code, 7; Harston’s (Cal.) Practice, 32.
32-01-09. Civil action — One form — Plaintiff and defendant defined. [Repealed]
Superseded by N.D.R.Civ.P. 2.
32-01-10. Provisional remedies classified.
The provisional remedies in civil actions are:
- Claim and delivery of personal property.
- Attachment.
- Garnishment.
- Receivers.
- Deposit in court.
Source:
C. Civ. P. 1877, § 147; R.C. 1895, § 5302; R.C. 1899, § 5302; R.C. 1905, § 6888; C.L. 1913, § 7487; R.C. 1943, § 32-0110.
Cross-References.
Attachment, see N.D.C.C. ch. 32-08.1.
Claim and delivery of personal property, see N.D.C.C. ch. 32-07.
Deposit in court, see N.D.C.C. ch. 32-11.
Garnishment, see N.D.C.C. ch. 32-09.1.
Receivership, see N.D.C.C. ch. 32-10.
Notes to Decisions
- Disqualification of Attorney.
- Garnishment.
- Possessory Action.
- Pretrial Examination.
- Similarity of Garnishment to Lien.
Disqualification of Attorney.
Disqualification of an attorney is not a provisional remedy in a civil action. Allen v. White Drug, 346 N.W.2d 279, 1984 N.D. LEXIS 268 (N.D. 1984).
Garnishment.
Garnishment is considered a judicial remedy and is specifically designated a “provisional remedy” in a civil action. In re Da-Sota Elevator Co., 135 B.R. 873, 1991 Bankr. LEXIS 1976 (Bankr. D.N.D. 1991).
Possessory Action.
A possessory action in which the plaintiff sought to recover from the defendant one half of the grain grown on certain land was a provisional remedy. Suchy v. Strain, 51 N.D. 106, 199 N.W. 193, 1924 N.D. LEXIS 152 (N.D. 1924).
Pretrial Examination.
Right to examine defendant before trial is not a provisional remedy. West Branch Pants Co. v. Gordon, 51 N.D. 742, 200 N.W. 908, 1924 N.D. LEXIS 72 (N.D. 1924).
Similarity of Garnishment to Lien.
Practically speaking, a garnishment’s purpose is very similar to that of a lien. The garnishment summons requires a garnishee to withhold property for the benefit of a judgment creditor in order that a judgment creditor be satisfied. Generally, garnished property is to be released if the judgment creditor is satisfied with other property or by agreement of the parties. Likewise, a lender’s reason for obtaining a lien on property is to gain assurance of debt repayment. A lien on property is generally released upon repayment of the obligation on loan. If the obligation is not repayed, the lender may have the right to have the property turned over for debt satisfaction. In re Da-Sota Elevator Co., 135 B.R. 873, 1991 Bankr. LEXIS 1976 (Bankr. D.N.D. 1991).
32-01-11. Compensation for violation of private rights — Other relief, when.
As a general rule compensation is the relief or remedy provided by the law of this state for the violation of private rights and the means of securing their observance. Specific and preventive relief may be given in no cases other than those specified in this title.
Source:
Civ. C. 1877, § 1938; R.C. 1895, § 4969; R.C. 1899, § 4969; R.C. 1905, § 6554; C.L. 1913, § 7137; R.C. 1943, § 32-0111.
Derivation:
Cal. Civ. C., 3274.
Cross-References.
Preventive relief, see N.D.C.C. ch. 32-05.
Specific relief, see N.D.C.C. ch. 32-04.
Notes to Decisions
Recovery of Mandatory Fine.
The state has no statutory authority to collect money from a county when the county court has not imposed a mandatory fine for a violation, which fine should have been paid into the state treasury for the benefit of the state school fund. State ex rel. Rayl v. Hettinger County, 467 N.W.2d 98, 1991 N.D. LEXIS 53 (N.D. 1991).
32-01-12. Conditions of relief from forfeiture.
Whenever by the terms of an obligation a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of the party’s failure to comply with its provisions, the party may be relieved therefrom upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty.
Source:
Civ. C. 1877, § 1939; R.C. 1895, § 4970; R.C. 1899, § 4970; R.C. 1905, § 6555; C.L. 1913, § 7138; R.C. 1943, § 32-0112.
Derivation:
Cal. Civ. C., 3275.
Notes to Decisions
Breach of Contract.
Relief from forfeiture for breach of contract may be obtained by making compensation when breach is not willful, fraudulent, or grossly negligent. Bennett v. Glaspell, 15 N.D. 239, 107 N.W. 45, 1906 N.D. LEXIS 23 (N.D. 1906).
32-01-13. How special issues not made by pleadings are tried. [Repealed]
Superseded by N.D.R.Civ.P. 39(b).
CHAPTER 32-02 Qualifications of Sureties
32-02-01. Qualifications of sureties — Personal.
Any person to be qualified to become surety on any bond or undertaking required in any court must be a resident and a householder or a freeholder in the state, and an affidavit to that effect must be annexed to the bond or undertaking. Such affidavit also shall state an amount each surety is worth above the surety’s liabilities and exemptions, and the total worth of such sureties must be double the sum named in the bond or undertaking.
Source:
C. Civ. P. 1877, § 164; R.C. 1895, § 5319; R.C. 1899, § 5319; R.C. 1905, § 6905; C.L. 1913, § 7504; R.C. 1943, § 32-0201.
Derivation:
Wait’s (N.Y.) Code, 194; Harston’s (Cal.) Practice, 494.
32-02-02. Exception to sureties.
Any party for whose benefit a bond or undertaking is required in any proceeding, within three days after service of a copy thereof, may except to the sufficiency of the sureties thereon. In such case the party furnishing such bond or undertaking either may cause the sureties to justify as hereinafter provided or to furnish a new bond or undertaking subject to like justification of sureties.
Source:
C. Civ. P. 1877, § 162; R.C. 1895, § 5317; R.C. 1899, § 5317; R.C. 1905, § 6903; C.L. 1913, § 7502; R.C. 1943, § 32-0202.
Derivation:
Wait’s (N.Y.) Code, 192; Harston’s (Cal.) Practice, 492.
32-02-03. Notice of justification.
If the party who furnished the bond excepted to elects to cause the party’s sureties to justify, the party, within three days after receipt of the notice of exception, shall give a written notice to the party excepting, of the justification of the sureties of the party who furnished the bond before the judge at the court in which the proceedings are filed, by appearance at a specified time and place, the time to be not less than three nor more than ten days thereafter.
Source:
C. Civ. P. 1877, § 163; R.C. 1895, § 5318; R.C. 1899, § 5318; R.C. 1905, § 6904; C.L. 1913, § 7503; R.C. 1943, § 32-0203.
Derivation:
Wait’s (N.Y.) Code, 193; Harston’s (Cal.) Practice, 493.
32-02-04. Attendance of witnesses.
The judge of the court before whom a justification proceeding is pending may issue and cause to be served subpoenas to compel attendance of any necessary witnesses, including the sureties excepted to, at the time and place set for such justification proceeding, or may permit their depositions to be taken in lieu of personal appearance.
Source:
R.C. 1943, § 32-0204.
32-02-05. Examination of sureties.
For the purpose of justification, each of the sureties excepted to shall appear before the judge personally or by deposition at the time and place mentioned in the notice and may be examined on oath on the part of the excepting party touching the surety’s sufficiency in such manner as the judge of the court may think proper. The examination shall be taken stenographically. The costs of the justification shall be paid by the party offering the sureties, if the same are found not sufficient, but if sufficient, then the party excepting shall pay such costs. Such costs shall be taxed by the court in which the action is pending as other costs are taxed.
Source:
C. Civ. P. 1877, § 165; S.L. 1889, ch. 21, § 1; R.C. 1895, § 5320; R. C. 1899, § 5320; R.C. 1905, § 6906; C.L. 1913, § 7505; R.C. 1943, § 32-0205.
Derivation:
Wait’s (N.Y.) Code, 193; Harston’s (Cal.) Practice, 495.
32-02-06. Finding by judge.
The judge of the court shall annex the examination to the undertaking, endorse the judge’s finding of sufficiency or insufficiency thereon, and cause the same to be filed in the office of the clerk of the court in which the action is pending.
Source:
C. Civ. P. 1877, § 166; R.C. 1895, § 5321; R.C. 1899, § 5321; R.C. 1905, § 6907; C.L. 1913, § 7506; R.C. 1943, § 32-0206.
Derivation:
Wait’s (N.Y.) Code, 196; Harston’s (Cal.) Practice, 496.
32-02-07. New bond may be furnished.
If the judge finds the sureties insufficient, the party furnishing the bond or undertaking may have three days within which to furnish a new bond or undertaking, the sureties on which also shall be subject to justification as provided herein.
Source:
C. Civ. P. 1877, § 163; R.C. 1895, § 5318; R.C. 1899, § 5318, R.C. 1905, § 6904; C.L. 1913, § 7503; R.C. 1943, § 32-0207.
Derivation:
Wait’s (N.Y.) Code, 193; Harston’s (Cal.) Practice, 493.
CHAPTER 32-03 Damages and Compensatory Relief
32-03-01. Damages for any injury.
Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages.
Source:
Civ. C. 1877, § 1940; R.C. 1895, § 4971; R.C. 1899, § 4971; R.C. 1905, § 6556; C.L. 1913, § 7139; R.C. 1943, § 32-0301.
Derivation:
Cal. Civ. C., 3281.
Cross-References.
Modified comparative fault, see N.D.C.C. § 32-03.2-02.
When court may award exemplary damages, see N.D.C.C. § 32-03.2-11.
Notes to Decisions
- Application and Construction.
- Assault and Battery.
- Automobile Accident.
- Conversion.
- False Advertising.
- Illegal Levy by Sheriff.
- Malicious Prosecution and False Imprisonment.
- Obstruction of Street.
- Products Liability.
- Retention of Money.
- Weeds, Failure to Destroy.
Application and Construction.
This section does not create any duties, but only provides for a remedy should an established duty be breached. Butts Feed Lots, Inc. v. United States, 690 F.2d 669, 1982 U.S. App. LEXIS 24823 (8th Cir. N.D. 1982).
Assault and Battery.
The measure of damages for assault and battery is the detriment one party has suffered because of the unlawful act of another. Unruh v. Murray, 84 N.W.2d 730, 1957 N.D. LEXIS 140 (N.D. 1957).
Automobile Accident.
Where defendant admitted that it was his negligent act that caused plaintiff’s injuries, the only duty of the jury was to find plaintiff’s damages for those injuries. Lake v. Neubauer, 87 N.W.2d 888, 1958 N.D. LEXIS 63 (N.D. 1958) but see Trade 'N Post, L.L.C. v. World Duty Free Ams., Inc., 2001 ND 116, 628 N.W.2d 707, 2001 N.D. LEXIS 130 (N.D. 2001).
Conversion.
In an action for the claim and delivery of a note and mortgage, the measure of damages is the face amount of the instrument with legal interest to the time of trial. Holt v. Van Eps, 46 N.W. 689, 1 Dakota 206, 1875 Dakota LEXIS 13 (Dakota 1875).
In an action for the conversion of an executory contract for the sale of land, the owner is entitled to compensation for all detriment caused thereby. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).
False Advertising.
Where defendant engaged in false advertising resulting in a decline in plaintiff’s business and causing plaintiff to counteract with its own advertisements to mitigate damages, plaintiffs were not limited to injunctive relief under the false advertising statutes, and were allowed to collect actual and punitive damages and court costs. Fargo Women's Health Org. v. FM Women's Help & Caring Connection, 444 N.W.2d 683, 1989 N.D. LEXIS 163 (N.D. 1989), overruled in part, Trade 'N Post, L.L.C. v. World Duty Free Ams., Inc., 2001 ND 116, 628 N.W.2d 707, 2001 N.D. LEXIS 130 (N.D. 2001).
Illegal Levy by Sheriff.
The damages recoverable for an illegal levy by a sheriff are measured by the value of the property at the time of the levy, and fair compensation for the time and money expended. Keith v. Haggart, 33 N.W. 465, 4 Dakota 438, 1887 Dakota LEXIS 13 (Dakota 1887).
Malicious Prosecution and False Imprisonment.
The statute applies in an action for malicious prosecution and false imprisonment. Kaeppler v. Red River Valley Nat'l Bank, 8 N.D. 406, 79 N.W. 869, 1899 N.D. LEXIS 26 (N.D. 1899).
Obstruction of Street.
Under the rule an abutting owner is liable for damages resulting from street obstruction. Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427, 1897 N.D. LEXIS 60 (N.D. 1897).
Products Liability.
Whether manufacturer of automobile which burst into flames upon being struck from rear had been negligent in design and placement of gasoline tank and whether rear-end collision of sufficient force to burst tank was reasonably foreseeable were questions for jury in wrongful death action. Johnson v. American Motors Corp., 225 N.W.2d 57, 1974 N.D. LEXIS 146 (N.D. 1974).
Retention of Money.
Interest is the measure of damages for the retention of money that is due and payable to another. Jacobson v. Mutual Benefit Health & Accident Ass'n, 70 N.D. 566, 296 N.W. 545, 1941 N.D. LEXIS 202, 1941 N.D. LEXIS 203 (N.D. 1941).
Weeds, Failure to Destroy.
A landowner is not liable for damages for failure to destroy noxious weeds until after the county commissioners have prescribed the time and manner of the destruction. Langer v. Goode, 21 N.D. 462, 131 N.W. 258, 1911 N.D. LEXIS 112 (N.D. 1911).
DECISIONS UNDER PRIOR LAW
Automobile Accident.
Under former N.D.C.C. ch. 39-15, the guest statute, which was held unconstitutional in Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873 (1936), in an action for injuries by an automobile guest against the host, the guest had the burden of proving that the acts complained of constituted gross rather than ordinary negligence. Johnson v. Hassett, 217 N.W.2d 771, 1974 N.D. LEXIS 245 (N.D. 1974).
Collateral References.
Damages 1.
22 Am. Jur. 2d, Damages, §§ 1 et seq.
25 C.J.S. Damages, §§ 1, 3.
Liability of religious association for damages for intentionally tortious conduct in recruitment, indoctrination, or related activity, 40 A.L.R.4th 1062.
Damages recoverable for wrongful discharge of at-will employee, 44 A.L.R.4th 1131.
Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.
Recoverability from tortfeasor of cost of diagnostic examinations absent proof of actual bodily injury, 46 A.L.R.4th 1151.
Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.
Public contracts: low bidder’s monetary relief against state or local agency for nonaward of contract, 65 A.L.R.4th 93.
Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.
Secondary smoke as battery, 46 A.L.R.5th 813.
Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 A.L.R.5th 535.
Products liability: liability for injury or death allegedly caused by defect in mobile home or trailer, 61 A.L.R.5th 473.
Claims for Vicarious and Individual Liability for Infliction of Emotional Distress Derived from Use of Internet and Electronic Communications, 30 A.L.R.6th 241.
Liability of Property Owners to Persons Who Have Never Been on or Near Their Property for Exposure to Asbestos Carried Home on Household Member’s Clothing, 33 A.L.R.6th 325.
Law Reviews.
For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).
32-03-02. Detriment defined.
Detriment is a loss or harm suffered in person or property.
Source:
Civ. C. 1877, § 1941; R.C. 1895, § 4972; R.C. 1899, § 4972; R.C. 1905, § 6557; C.L. 1913, § 7140; R.C. 1943, 32-0302.
Derivation:
Cal. Civ. C., 3282.
32-03-03. Damages resulting after action commenced.
Damages may be awarded in a judicial proceeding for detriment resulting after the commencement thereof or certain to result in the future.
Source:
Civ. C. 1877, § 1942; R.C. 1895, § 4973; R.C. 1899, § 4973; R.C. 1905, § 6558; C.L. 1913, § 7141; R.C. 1943, § 32-0303.
Derivation:
Cal. Civ. C., 3283.
Notes to Decisions
- Application of Law.
- Breach of Contract.
- Certain.
- Detriment After Commencement of Action.
- Repossession of Property.
- Uncertain Damages.
Application of Law.
This section relates to subsequent damages arising out of acts done prior thereto, and which are the basis of the cause of action alleged. It does not permit proof of, and recovery of damages for, subsequent acts which are in themselves new causes of action. Mevorah v. Goodman, 74 N.W.2d 103, 1955 N.D. LEXIS 165 (N.D. 1955).
Breach of Contract.
The legal rate of interest is allowable by way of compensation as damages for breach of contract. Stutsman County v. Dakota Trust Co., 47 N.D. 228, 181 N.W. 586, 1921 N.D. LEXIS 91 (N.D. 1921).
Certain.
The word “certain” is not used in the absolute sense, and cannot be construed as embracing only those consequences or elements of damage which are absolutely certain to follow a given injury. Leonard v. North Dakota Coop. Wool Marketing Ass'n, 72 N.D. 310, 6 N.W.2d 576, 1942 N.D. LEXIS 146 (N.D. 1942).
Although trial court properly allowed expert medical witness to testify as to plaintiff’s available options for future treatment, admission of testimony by such expert as to costs of possible future surgery was prejudicial error; “certain” as used in this section required establishment of reasonable medical certainty or probability that future surgery would be necessary. Holecek v. Janke, 171 N.W.2d 94, 1969 N.D. LEXIS 86 (N.D. 1969).
Future damages must be proved with reasonable certainty; they cannot be awarded on the basis of speculative possibilities or conjecture. Olmstead v. Miller, 383 N.W.2d 817, 1986 N.D. LEXIS 287 (N.D. 1986).
Detriment After Commencement of Action.
General and special damages may be awarded for detriment resulting after an action has been commenced or certain to result in the future. Shoemaker v. Sonju, 15 N.D. 518, 108 N.W. 42, 1906 N.D. LEXIS 57 (N.D. 1906); York v. General Util. Corp., 41 N.D. 137, 170 N.W. 312, 1918 N.D. LEXIS 138 (N.D. 1918); Larson v. Russell, 45 N.D. 33, 176 N.W. 998, 1919 N.D. LEXIS 243 (N.D. 1919).
Repossession of Property.
In an action for possession of property and rent, the plaintiff may recover to the day of the verdict or judgment and, in case of appeal, to the disposition of the appeal. McLain v. Nurnberg, 16 N.D. 144, 112 N.W. 243, 1907 N.D. LEXIS 36 (N.D. 1907).
Uncertain Damages.
—Denied.
Where damages sought were both uncertain to occur and wholly speculative in amount, the district court properly denied them. Koch Hydrocarbon Co. v. MDU Resources Group, 988 F.2d 1529, 1993 U.S. App. LEXIS 4555 (8th Cir. N.D. 1993).
Collateral References.
Damages 25-29.
22 Am Jur 2d Damages §§ 480 et seq.
25 C.J.S. Damages, §§ 29-31.
Overflow of land caused by artificial construction or obstruction, 5 A.L.R.2d 302.
Award of “present worth” of prospective losses in action to recover damages for personal injury resulting in death of infant, 14 A.L.R.2d 485.
Validity of state statute providing for periodic payment of future damages in medical malpractice action, 41 A.L.R.4th 275.
Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.
32-03-04. Interest on damages.
Every person who is entitled to recover damages certain or capable of being made certain by calculation, the right to recover which is vested in the person upon a particular day, also is entitled to recover interest thereon from that day, except for such time as the debtor is prevented by law or by the act of the creditor from paying the debt.
Source:
Civ. C. 1877, § 1943; R.C. 1895, § 4974; R.C. 1899, § 4974; R.C. 1905, § 6559; C.L. 1913, § 7142; R.C. 1943, § 32-0304.
Derivation:
Cal. Civ. C., 3287.
Notes to Decisions
- Arbitration Award.
- Breach of Bond.
- Breach of Contract.
- Damages Capable of Being Made Certain.
- Date of Commencement.
- Determination of Amount of Damages.
- Insurance Claims.
- Life Insurance.
- Partial Performance.
- Pleading.
- Prejudgment Interest.
- Public Dump.
- Rate of Prejudgment Interest.
- Suit on Account.
- Unjust Enrichment.
Arbitration Award.
Award of interest on an arbitration award would be stricken only if shown to be completely irrational. Nelson Paving Co. v. Hjelle, 207 N.W.2d 225, 1973 N.D. LEXIS 176 (N.D. 1973).
Breach of Bond.
In an action on a statutory bond given on a warrant for seizure, damages may be recovered in excess of the penalty to the extent of legal interest from the date of the breach. Krach v. Security State Bank, 43 N.D. 441, 175 N.W. 573, 1919 N.D. LEXIS 52 (N.D. 1919).
Breach of Contract.
The legal rate of interest is allowable by way of compensation as damages for breach of contract. Stutsman County v. Dakota Trust Co., 47 N.D. 228, 181 N.W. 586, 1921 N.D. LEXIS 91 (N.D. 1921).
Where amount due for breach of contract was ascertainable by calculation in accordance with the terms of the contractual agreement, interest was payable on such amount from date of breach. Metcalf v. Security Int'l Ins. Co., 261 N.W.2d 795, 1977 N.D. LEXIS 183 (N.D. 1977).
Where a corporation rejected a former employee’s offer to sell back his stock at book value during an initial sixty-day period called for in a stockholders’ agreement and then later agreed to buy the stock during a separate sixty-day period provided by the stockholders’ agreement for the parties to negotiate a mutually satisfactory price, the former employee had the right to reject the corporation’s belated offer and was awarded damages equal to what he would have received upon liquidation of the corporation and was also awarded interest on the damages calculated from the time the original offer was rejected by the corporation until money was actually paid. KBM, Inc. v. MacKichan, 438 N.W.2d 181, 1989 N.D. LEXIS 68 (N.D. 1989).
Restaurant management company was entitled to recover interest on unpaid management fees on an improperly terminated contract as of the day when the right to recover the unpaid fees vested, which was the day when the management contracts were improperly terminated. Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206, 2008 N.D. LEXIS 118 (N.D. 2008).
Federal district court’s order freezing the insurance agent’s accounts and assets did not prevent the insurer from parting with the agent’s benefit while the order was in effect; this kept the annuity benefit and had the beneficial use of the funds for any purposes of its business, and the agent was entitled to prejudgment interest from January 1, 2003. Huber v. Farmers Union Serv. Ass'n of N.D., 2010 ND 151, 787 N.W.2d 268, 2010 N.D. LEXIS 155 (N.D. 2010).
Damages Capable of Being Made Certain.
Where there was uncontradicted evidence that plaintiff sustained lost profits on more than 500,000 pounds of sunflowers at two to three cents per pound, the damages were capable of being made certain to satisfy the requirements of this section and plaintiff was entitled to recover interest. Robertson Cos. v. Kenner, 311 N.W.2d 194, 1981 N.D. LEXIS 391 (N.D. 1981).
Trial court did not err in upholding jury’s award of interest where ophthalmologist failed to show that the damages awarded against him were uncertain or incapable of being made certain or that the interest was incorrectly computed. Dowhan v. Brockman, 2001 ND 70, 624 N.W.2d 690, 2001 N.D. LEXIS 84 (N.D. 2001).
Date of Commencement.
Where carrier and contractor had entered into express oral contract and carrier performed its obligations pursuant thereto, interest was properly awarded it from invoice date in action to recover transportation charges. Ets-Hokin & Galvan, Inc. v. Maas Transport, Inc., 380 F.2d 258, 1967 U.S. App. LEXIS 5673 (8th Cir. N.D.), cert. denied, 389 U.S. 977, 88 S. Ct. 481, 19 L. Ed. 2d 471, 1967 U.S. LEXIS 188 (U.S. 1967).
Awarding payee corporation, which recovered from bank for losses sustained due to bank’s cashing corporation checks which corporation’s district manager deposited to his personal account, allowance of interest from date of demand was not error since interest could have been allowed from date each check was accepted by bank. Fargo Nat'l Bank v. Massey-Ferguson, Inc., 400 F.2d 223, 1968 U.S. App. LEXIS 5676 (8th Cir. N.D. 1968).
Where the amount of plaintiff’s claim was established by defendant’s accountants prior to transfer later found to be in fraud of creditors, defendants could not complain that the claim was disputed or uncertain after that time, and therefore, plaintiff was entitled to interest from the date the amount of his claim was established, even though that date was prior to the time judgment was entered for him. Stee v. "L" Monte Indus., 247 N.W.2d 641, 1976 N.D. LEXIS 160 (N.D. 1976).
Determination of Amount of Damages.
In an action to recover damage to automobile sustained as the result of an accident where the amount of damages sought to be recovered by plaintiff was not fixed or capable of being made certain by calculation, interest could not be computed until such amount had been determined. Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381, 1950 N.D. LEXIS 138 (N.D. 1950).
Insurance Claims.
Where insured builder of a silo did not submit written proof of loss of his particular interest in the silo to his insurance company as provided under his builders risk policy when the silo was destroyed by winds, but instead filed a claim for the maximum amount of coverage under the policy which claim was denied by the insurance company, and from the other facts it was apparent that the insurance company would have denied the claim even if the insured had submitted written proof of his particular interest, the insured was properly awarded interest from the time of the denial of his claim in a judgment against the insurance company for benefits under the policy. Dolajak v. State Auto. & Casualty Underwriters, 278 N.W.2d 373, 1979 N.D. LEXIS 174 (N.D. 1979).
The district court did not err in determining that the amount of damages was not a sum certain and that, therefore the plaintiff was not entitled to prejudgment interest where the court was faced with a dispute over how much of a loss was covered by an insurance policy and what computation methods should be used to determine the amount of that loss. BancInsure, Inc. v. BNC Nat'l Bank, N.A., 263 F.3d 766, 2001 U.S. App. LEXIS 18494 (8th Cir. N.D. 2001).
Life Insurance.
In action by beneficiary of life policy issued by defendant to recover for the death of the insured, if the plaintiff was entitled to recover the principal sum, she was also entitled as a matter of law to interest on that sum from the day the right to recover the principal sum vested in her. Jacobson v. Mutual Benefit Health & Accident Ass'n, 70 N.D. 566, 296 N.W. 545, 1941 N.D. LEXIS 202, 1941 N.D. LEXIS 203 (N.D. 1941).
Partial Performance.
Where borrower did not tender the February and March 1993 mortgage payments until May 4, 1993, so that by that time, the April and May 1993 payments were also delinquent, the tendered payment did not bring the loan current; borrower therefore did not tender the performance of his obligation, but only tendered partial performance. While an obligation is extinguished by an offer of performance intended to extinguish the obligation, an offer of partial performance is of no effect and borrower was not released from any obligation to pay interest on the debt. Resolution Trust Corp. v. Gosbee, 536 N.W.2d 698, 1995 N.D. LEXIS 140 (N.D. 1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 730, 1996 U.S. LEXIS 520 (U.S. 1996).
Pleading.
This section does not waive the ordinary rules of pleading in matters relating to the recovery of interest. Steen v. Neva, 37 N.D. 40, 163 N.W. 272, 1917 N.D. LEXIS 71 (N.D. 1917).
Where a party is entitled to recover definite sum as damages on day certain, he is also entitled to recover interest thereon from that day, and such interest need not be specially demanded in pleading. Adamsen Constr. Co. v. Altendorf, 152 N.W.2d 576, 1967 N.D. LEXIS 86 (N.D. 1967).
Prejudgment Interest.
—In General.
Although judgment did not conform to the order for judgment because the judgment included prejudgment interest not mentioned in the order, prejudgment interest was required by this section; landlord was entitled to recover damages certain or capable of being made certain by calculation. Village West Assoc. v. Boeder, 488 N.W.2d 376, 1992 N.D. LEXIS 153 (N.D. 1992).
Plaintiffs were entitled to prejudgment interest from the date of the last payment under their agreement until the day a new judgment was entered. Kaler v. Kraemer, 1999 ND 237, 603 N.W.2d 698, 1999 N.D. LEXIS 263 (N.D. 1999).
District court abused its discretion in awarding prejudgment interest from the dates the Supplemental Revenue Assistance Payments Program funds were transferred from a debtor to a law firm, the law firm was the party sought to be held liable for the fraudulent transfers, the creditor's right to recover did not vest until the firm transferred the funds, the Supreme Court of North Dakota had held the district court erred in holding the firm liable for the transfer of funds to a debtor's designee, and thus, the firm was only liable for prejudgment interest from when funds designated as attorney fees were removed from the law office trust account and placed in the office business account. PHI Fin. Servs. v. Johnston Law Office, P.C., 2016 ND 20, 874 N.W.2d 910, 2016 N.D. LEXIS 20 (N.D. 2016).
—Denied.
Refusal to grant prejudgment interest on damages awarded was proper. Koch Hydrocarbon Co. v. MDU Resources Group, 988 F.2d 1529, 1993 U.S. App. LEXIS 4555 (8th Cir. N.D. 1993).
—Prisoner Medical Care.
In action seeking payment for medical bills for treatment of prisoner in county jail, hospitals were not entitled to prejudgment interest because their claims were not certain; although the county’s obligation to pay for a prisoner’s medical care is fixed by statute, the language in N.D.C.C. § 12-44.1-14(6) is ambiguous, and because the supreme court had not previously construed this section, the hospitals’ claims were uncertain and unliquidated. United Hosp. v. D'Annunzio, 514 N.W.2d 681, 1994 N.D. LEXIS 86 (N.D. 1994).
Public Dump.
The statute relating to interest on damages has no application to actions for damages sustained by an owner of realty by the establishment and operation of a public dump by the city near the owner’s realty. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 1942 N.D. LEXIS 94 (N.D. 1942).
Rate of Prejudgment Interest.
In the absence of a specific contractual rate of interest, prejudgment interest must be calculated at the prescribed legal rate of interest in legal and equitable actions. Hirschkorn v. Severson, 319 N.W.2d 475, 1982 N.D. LEXIS 282 (N.D. 1982).
Suit on Account.
Where plaintiff, who brought action to recover the balance due upon an account, was entitled to interest as a matter of right, the jury had no discretion as to its allowance. Weber Chimney Co. v. Riley, 39 N.D. 487, 167 N.W. 753, 1918 N.D. LEXIS 45 (N.D. 1918).
Unjust Enrichment.
In an action based on unjust enrichment, plaintiff did not have a vested right of recovery until judgment was rendered, and trial court did not abuse its discretion in denying interest on the amount of recovery for the time prior to the rendering of the judgment. Midland Diesel Serv. & Engine Co. v. Sivertson, 307 N.W.2d 555, 1981 N.D. LEXIS 311 (N.D. 1981).
Collateral References.
Damages 66-69.
22 Am. Jur. 2d, Damages, §§ 462 et seq.
Date of verdict or date of entry of judgment thereon as beginning of interest period on judgment, 1 A.L.R.2d 479.
Preferential payment recovered by trustee in bankruptcy, interest on, 4 A.L.R.2d 327.
Breach of contract for the sale of a commodity, interest as element of damages recoverable in action for, 4 A.L.R.2d 1388.
Specific performance, interest on rents and profits as recoverable by purchaser asserting right to, 7 A.L.R.2d 1204.
Temporary use and occupancy: damages for taking of property for temporary use and occupancy as including interest, 7 A.L.R.2d 1309.
Interpleaded or impleaded disputed funds, interest on judgment awarding, 15 A.L.R.2d 473.
Real estate broker’s statutory bond, recovery of interest in action on, 17 A.L.R.2d 1012, 1035.
Vendee’s recovery of interest as element of damages where vendor is unable or refuses to convey, 17 A.L.R.2d 1300, 1365.
Governmental unit: absence of required demand as affecting recovery of interest on claim against a governmental unit in absence of provision in contract or express statutory provision, 24 A.L.R.2d 928.
Rights as between vendor and vendee under land contract in respect of interest, 25 A.L.R.2d 951, 975.
Warehouseman guilty of negligence causing injury to, or destruction of, goods of a perishable nature, interest recoverable from, 32 A.L.R.2d 910.
Alimony, right to interest on unpaid, 33 A.L.R.2d 1455.
Rescission: recovery of interest on purchase price upon rescission by buyer of sale of domestic animal for breach of warranty, 35 A.L.R.2d 1273, 1274.
Detention of property, interest on damages for period before judgment for, 36 A.L.R.2d 337, 413.
Eminent domain, interest on damages for period before judgment for property taken under power of, 36 A.L.R.2d 337, 413.
Automobile collision insurance policy, recovery of interest by insured in action under, 43 A.L.R.2d 327.
Probate: interest on decree or judgment of probate court allowing a claim against estate or making an allowance for services, 54 A.L.R.2d 814.
Coexecutor’s or coadministrator’s liability for interest for defaults or wrongful acts of fiduciary in handling estate, 65 A.L.R.2d 1019, 1068.
Trees or shrubbery, interest as element of damages recoverable for destruction of, or injury to, 69 A.L.R.2d 1335.
Allowance of damages to successful plaintiff or relator in mandamus, 73 A.L.R.2d 903.
Commercial paper, interest on damages recoverable for conversion or loss of, 85 A.L.R.2d 1349.
Tax refund: right to interest on refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823.
Eminent domain: liability, upon abandonment of eminent domain proceedings, for interest on award or judgment, 92 A.L.R.2d 355, 411.
Wrongful death damages, prejudgment interest on, 96 A.L.R.2d 1104.
Construction contract, allowance of prejudgment interest on builder’s recovery in action for breach of, 60 A.L.R.3d 487.
Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.
Measure of damages in action for breach of warranty of title to personal property under UCC sec. 2-714, 94 A.L.R.3d 583.
Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.
Measure and elements of damages in action against garageman based on failure to properly perform repair or service on motor vehicle, 1 A.L.R.4th 347.
Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.
Validity and construction of state statute or rule allowing or changing rate of prejudgment in tort actions, 40 A.L.R.4th 147.
Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation — Twentieth Century cases, 90 A.L.R.4th 1033.
Law Reviews.
Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to vendor-purchaser, 66 N.D. L. Rev. 879 (1990).
North Dakota Supreme Court Review, (Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206 (2008)), see 85 N. Dak. L. Rev. 503 (2009).
32-03-05. When interest in discretion of court or jury.
In an action for the breach of an obligation not arising from contract and in every case of oppression, fraud, or malice, interest may be given in the discretion of the court or jury.
Source:
Civ. C. 1877, § 1944; R.C. 1895, § 4975; R.C. 1899, § 4975; R.C. 1905, § 6560; C.L. 1913, § 7143; R.C. 1943, § 32-0305; S.L. 1977, ch. 300, § 1.
Derivation:
Cal. Civ. C., 3288.
Notes to Decisions
- Conversion Actions.
- Dissolution of Partnership.
- Judgment.
- Partnership Property, Illegal Sale.
- Question for Jury.
- Tort Action.
- Unjust Enrichment.
- Workers’ Compensation Action.
Conversion Actions.
District court erred by instructing the jury it could elect not to include interest in a credit corporation’s conversion award because, the corporation elected to receive damages under N.D.C.C. § 32-03-23(1) and should have been awarded interest in addition to the value of the tractor at the time of the conversion as the award of interest was mandatory. N.D.C.C. § 32-03-23 applies specifically to conversion while N.D.C.C. § 32-03-05, applies to torts in general. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).
Dissolution of Partnership.
Prejudgment interest at six per cent per annum on partner’s share of accumulated profits following dissolution of the partnership was upheld. Tarnavsky v. Tarnavsky, 147 F.3d 674, 1998 U.S. App. LEXIS 12129 (8th Cir. N.D. 1998).
District court properly adopted an estate’s accounting of a partnership’s profits and losses, ordered the estate to pay the decedent’s nephew the remaining balance of his one-fourth interest from the sale of the decedent’s real property, and denied interest on the distribution because none of the partnership’s financial documents included the nephew’s wage expense in laboring for a partnership in which he, the decedent, and the decedent’s brother were partners, the nephew did not present evidence showing the estate breached an obligation or committed fraud, and his earlier distributions from the estate did not include interest. Moore v. Moore (In re Estate of Moore), 2020 ND 249, 951 N.W.2d 219, 2020 N.D. LEXIS 243 (N.D. 2020).
Judgment.
A judgment must be supported by and conform to the verdict, decision, or findings with respect to the allowance of interest and the amount thereof. Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381, 1950 N.D. LEXIS 138 (N.D. 1950).
Partnership Property, Illegal Sale.
Interest from the date of sale was properly allowable on the amount wrongfully withheld where it is established, in an action for accounting brought by partner against partner, that the defendant had wrongfully sold partnership property and had wrongfully withheld payment for interest of other partners. Engstrom v. Larson, 79 N.D. 188, 55 N.W.2d 579, 1952 N.D. LEXIS 112 (N.D. 1952).
Question for Jury.
The allowance of interest under this section is a question for the jury. Johnson v. Northern Pac. Ry., 1 N.D. 354, 48 N.W. 227, 1890 N.D. LEXIS 41 (N.D. 1890).
In an action to enjoin packing plant from polluting river, the allowance of interest is discretionary with the trier of the facts and not obligatory, and interest may not be awarded as a matter of law. Storley v. Armour & Co., 107 F.2d 499, 1939 U.S. App. LEXIS 2778 (8th Cir. N.D. 1939).
Supreme Court refused to disallow jury’s award of prejudgment interest on non-economic damages citing this section’s provision of discretion to the trier-of-fact to award such interest. Kreidt v. Burlington N. R.R., 2000 ND 150, 615 N.W.2d 153, 2000 N.D. LEXIS 160 (N.D. 2000).
Jury acted within its discretion in awarding interest on past noneconomic damages in a personal injury case, but prejudgment interest was not available as to future damages. Gonzalez v. Tounjian, 2003 ND 121, 665 N.W.2d 705, 2003 N.D. LEXIS 134 (N.D. 2003).
Tort Action.
In a tort action, the allowance of interest is discretionary with the jury. Seckerson v. Sinclair, 24 N.D. 625, 140 N.W. 239, 1913 N.D. LEXIS 20 (N.D. 1913).
In a tort action, a return of a verdict in excess of the ad damnum is presumed to include interest. Reichert v. Northern Pac. Ry., 39 N.D. 114, 167 N.W. 127, 1917 N.D. LEXIS 144 (N.D. 1917), limited, Froemke v. Parker, 41 N.D. 408, 171 N.W. 284, 1919 N.D. LEXIS 89 (N.D. 1919), overruled in part, Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).
Prejudgment interest in tort cases is governed by this section, not by N.D.C.C. § 32-03-04, which governs prejudgment interest in contract cases. Roise v. Kurtz, 1998 ND 228, 587 N.W.2d 573, 1998 N.D. LEXIS 224 (N.D. 1998).
Unjust Enrichment.
In an action based on unjust enrichment, plaintiff did not have a vested right of recovery until judgment was rendered, and trial court did not abuse its discretion in denying interest on the amount of recovery for the time prior to the rendering of the judgment. Midland Diesel Serv. & Engine Co. v. Sivertson, 307 N.W.2d 555, 1981 N.D. LEXIS 311 (N.D. 1981).
Workers’ Compensation Action.
The term “damages” within the meaning of N.D.C.C. § 65-01-09 includes the interest recovered by the injured worker in suing. Therefore, the bureau properly included interest recovered by the worker in calculating its subrogation claim. Kavadas v. North Dakota Workers Compensation Bureau, 466 N.W.2d 839, 1991 N.D. App. LEXIS 4 (N.D. Ct. App. 1991).
Collateral References.
Validity and construction of state statute or rule allowing or changing rate of prejudgment interest in tort actions, 40 A.L.R.4th 147.
Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.
Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 A.L.R.5th 535.
32-03-06. When accepting principal waives interest.
Accepting payment of the whole principal as such waives all claim to interest, unless interest is provided for expressly in the contract.
Source:
Civ. C. 1877, § 1945; R.C. 1895, § 4976; R.C. 1899, § 4976; R.C. 1905, § 6561; C.L. 1913, § 7144; R.C. 1943, § 32-0306.
Derivation:
Cal. Civ. C., 3290.
32-03-07. When court or jury may give exemplary damages. [Repealed]
Repealed by S.L. 1987, ch. 404, § 13, as amended by S.L. 1993, ch. 324, § 1.
Collateral References.
Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.
Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.
32-03-08. When minor or incompetent subjected to exemplary damages.
A minor or person of unsound mind cannot be subjected to exemplary damages unless at the time of the act the minor or person of unsound mind was capable of knowing that it was wrongful.
Source:
Civ. C. 1877, § 24; R.C. 1895, § 2710; R.C. 1899, § 2710; R.C. 1905, § 4022; C.L. 1913, § 4347; R.C. 1943, § 32-0308.
Derivation:
Cal. Civ. C., 41.
Cross-References.
Powers of incompetents, see N.D.C.C. ch. 14-01.
Collateral References.
Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.
Excessiveness or inadequacy of punitive damages in cases not involving personal injury or death, 14 A.L.R.5th 242.
32-03-09. Measure of damages for breach of contract — Damages must be certain.
For the breach of an obligation arising from contract, the measure of damages, except when otherwise expressly provided by the laws of this state, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby or which in the ordinary course of things would be likely to result therefrom. No damages can be recovered for a breach of contract if they are not clearly ascertainable in both their nature and origin.
Source:
Civ. C. 1877, §§ 1947, 1948; R.C. 1895, § 4978; R.C. 1899, § 4978; R.C. 1905, § 6563; C.L. 1913, § 7146; R.C. 1943, § 32-0309.
Derivation:
Cal. Civ. C., 3300, 3301.
Notes to Decisions
- Attachment.
- Benefit of Bargain.
- Common Law.
- Construction Contract.
- Difference of Value.
- Diminution in Value.
- Employment Contract.
- Farm Equipment, Failure to Deliver.
- Full Contract Price.
- Insurance Policy, Failure to Defend Insured.
- Limit on Recovery.
- Lost Profits.
- Mitigation of Damages.
- Modified Net Profit.
- Proximately Caused.
- Real Estate Contract.
- Seed Grain Warranty.
- Service Contract.
- Statutory Rule.
- Substantial Compliance.
Attachment.
In an action for damages on an undertaking given upon the issuance of an attachment, the damages recoverable refer only to the injury done to the property taken and not to any collateral or consequential damages resulting to the owner by the trespass. Thompson v. Webber, 29 N.W. 671, 4 Dakota 240, 1886 Dakota LEXIS 14 (Dakota 1886).
Benefit of Bargain.
The law incorporates the notion that contract damages should give the nonbreaching party the benefit of the bargain by awarding a sum of money that will put that person in as good a position as if the contract had been performed. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Common Law.
The rule laid down in the statute, in effect, is the common-law rule that compensation is recoverable for all detriment proximately and naturally caused by the breach of contract. Hayes v. Cooley, 13 N.D. 204, 100 N.W. 250, 1904 N.D. LEXIS 31 (N.D. 1904).
The measure of damages for breach of a contract is the same as at common law. Needham v. H. S. Halverson & Co., 22 N.D. 594, 135 N.W. 203, 1912 N.D. LEXIS 59 (N.D. 1912).
Construction Contract.
Award of damages to construction company for cost of necessary and agreed changes in contract, which were due to the fact that the city had not prepared site in accordance with specifications, was properly based on total cost of performance, where it was virtually impossible to separate equitable adjustment of consideration from damages and the total cost was supported by substantial evidence. Moorhead Constr. Co. v. Grand Forks, 508 F.2d 1008, 1975 U.S. App. LEXIS 16751 (8th Cir. N.D. 1975).
Trial court’s award of damages to excavation company based on load count was not clearly erroneous where developer failed to perform an initial cross-sectioning of area to be excavated as required by the contract, thereby preventing a more accurate calculation. Wachter v. Gratech Co., 2000 ND 62, 608 N.W.2d 279, 2000 N.D. LEXIS 65 (N.D. 2000).
Company argued that the district court erred in holding the company liable to the county for prompt payment interest, but this was not ordered, and instead, the district court ordered the company to share in satisfying the damages that flowed from its breach of contract; prompt payment interest was a detriment at least partially caused by the company’s failure to honor its contractual commitment, the company was not in a position to complain about mitigation of damages, and the damages findings were not clearly erroneous. C&C Plumbing & Heating, LLP v. Williams County, 2014 ND 128, 848 N.W.2d 709, 2014 N.D. LEXIS 126 (N.D. 2014).
District court did not abuse its discretion in denying the motion for a new trial based on excessive damages influenced by prejudice or passion where the jury heard testimony regarding the total cost of the building, the structural deficiencies of the building, and the potential costs for demolition of the building, the jury was instructed that potential damages were not limited to the contract price, and the contractor did not object to allegedly prejudicial statements made during closing statements. Jalbert v. Eagle Rigid Spans, Inc., 2017 ND 50, 891 N.W.2d 135, 2017 N.D. LEXIS 44 (N.D. 2017).
Difference of Value.
The purpose of the difference of value alternative is to avoid unreasonable economic waste when the destruction of usable property and subsequent reconstruction of property is necessary for completion in accordance with the construction contract. Biteler's Tower Serv. v. Guderian, 466 N.W.2d 141, 1991 N.D. LEXIS 16 (N.D. 1991).
Diminution in Value.
Because the estimated cost to repair the property to return it to the condition when the commercial lease began was approximately $2.7 million, and the evidence established the cost of repairing the property was significantly higher than the diminution in value, diminution of value was the correct measure of damages; however, because the evidence established the property was worth the same regardless of whether the repairs were made, there would be no damages under the diminution of value measure, and the district court did not err in failing to award the lessor damages for its breach of contract claim related to the lessee’s failure to repair the parking area. Three Aces Props. LLC v. United Rentals (N. Am.), Inc., 2020 ND 258, 952 N.W.2d 64, 2020 N.D. LEXIS 270 (N.D. 2020).
Employment Contract.
One who has wrongfully and fraudulently put an end to a contract of employment cannot say that the party injured has not been damaged at least to the amount of what he has been induced, fairly and in good faith, to lay out and expend, including his own services. McLean v. News Publishing Co., 21 N.D. 89, 129 N.W. 93, 1910 N.D. LEXIS 152 (N.D. 1910).
The correct measure of damages due an improperly discharged schoolteacher was his wages for the entire school term less the amount earned or that he could have earned by reasonable efforts in employment obtained after his discharge. Miller v. South Bend Special Sch. Dist., 124 N.W.2d 475, 1963 N.D. LEXIS 123 (N.D. 1963).
A school district being sued for breach of employment contract must assume the burden of proving that the wrongfully discharged teacher did not reasonably attempt to minimize his damages by seeking other employment. Miller v. South Bend Special Sch. Dist., 124 N.W.2d 475, 1963 N.D. LEXIS 123 (N.D. 1963).
Where a wrongfully discharged employee has been able to obtain only one type of substitute employment during a three-month period from the time of his wrongful discharge to the time of trial, the probability that he will be unable to obtain other employment during the remaining two months of the original term of employment is sufficiently great that damages are clearly ascertainable. Miller v. South Bend Special Sch. Dist., 124 N.W.2d 475, 1963 N.D. LEXIS 123 (N.D. 1963).
District court’s findings of damages were within the evidence and testimony provided. The evidence supported the district court’s findings that because defendant employees breached their proprietary information agreements and employment contracts, plaintiff employer would have suffered damages. SolarBee, Inc. v. Walker, 2013 ND 110, 833 N.W.2d 422, 2013 N.D. LEXIS 111 (N.D. 2013).
Employer did not show the employer overpaid employees commissions because (1) the parties presented conflicting damages evidence, and (2) a lack of inventories barred finding overpayment under a certain contract. Serv. Oil, Inc. v. Gjestvang, 2015 ND 77, 861 N.W.2d 490, 2015 N.D. LEXIS 77 (N.D. 2015).
Farm Equipment, Failure to Deliver.
Damages to grain from rain were recoverable against a seller for failure to deliver a threshing machine on date fixed in the contract. Lindsay v. Nichols & Shepard Threshing Mach. Co., 59 N.D. 313, 229 N.W. 808, 1930 N.D. LEXIS 144 (N.D. 1930).
Full Contract Price.
The general rule is that the seller’s remedy for the buyer’s breach of an executory contract to purchase an ongoing business is to recover damages for the difference between the contract price and the fair market value of the business on the date of the breach. However, in the case of an executed contract, where the seller has fully performed and the buyer has breached by refusing to pay the agreed-upon price, the seller may sue for the full contract price. D.G. Porter, Inc. v. Fridley, 373 N.W.2d 917, 1985 N.D. LEXIS 399 (N.D. 1985).
Insurance Policy, Failure to Defend Insured.
Where an insurer refuses to defend actions against insured arising out of a risk which insurer claims is not covered by the policy, and such risk is thereafter found by the court to be within the policy coverage, the failure to defend is a breach of the insurance contract which renders insurer liable for all costs and expenses incurred by insured in defending the actions. Prince v. Universal Underwriters Ins. Co., 143 N.W.2d 708, 1966 N.D. LEXIS 164 (N.D. 1966).
Limit on Recovery.
For a breach of contract, the injured party is entitled to compensation for the loss suffered, but can recover no more than would have been gained by full performance. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Where the lessee did not meet the higher standard required to support an award of specific performance, by clearly showing that the legal remedy of damages was inadequate, and where evidence fell short of proving monetary damages could not have been a sufficient remedy for securing and farming land in another location, the trial court did not abuse its discretion in failing to award specific performance. The mere uncertainty as to the exact amount does not preclude recovery, yet, damages that are not clearly ascertainable in their nature and origin cannot be recovered pursuant to N.D.C.C. § 32-03-09. Damages for breach of a farm lease beyond one year are not speculative and uncertain as a matter of law; however, on the record in this case, damages were not clearly ascertainable and would have been speculative. Livinggood v. Balsdon, 2006 ND 11, 709 N.W.2d 723, 2006 N.D. LEXIS 17 (N.D. 2006).
Lost Profits.
A party is entitled to recover for the detriment caused by the defendant’s breach, including lost profits if they are reasonable and not speculative. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Where a plaintiff offers evidence estimating anticipated profits with reasonable certainty, they may be awarded. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Mitigation of Damages.
In a case in which a farmer sued a property owner for breach of a farm lease, the evidence supported the trial court’s finding that the farmer unsuccessfully tried to mitigate his damages by looking for other farmland to rent. Even if the farmer had been able to find other farmland to rent, it would not have been replacement land but land to expand his farming operation, and therefore it would not have reduced his damages. Hanson v. Boeder, 2007 ND 20, 727 N.W.2d 280, 2007 N.D. LEXIS 20 (N.D. 2007).
In an action by a general contractor against a subcontractor for breach of contract, the court did not clearly err in failing to offset the contractor’s damage award by the cost of unused pipe that the contractor purchased and failed to resell and for its refusal to allow the subcontractor to retry the contracted work as the evidence could support view that the leftover pipe could not be sold in the marketplace and that the subcontractor’s proposals to retry the work were not feasible; thus, the finding that the general contractor did not fail to mitigate damages was not clearly erroneous. Coughlin Constr. Co. v. Nu-Tec Indus., 2008 ND 163, 755 N.W.2d 867, 2008 N.D. LEXIS 166 (N.D. 2008).
Trial court did not clearly err by determining that the truck owner failed to mitigate its damages by not taking the truck to another repair shop after paying for the completed repairs on the truck to avoid future lost profits. Peterbilt of Fargo, Inc. v. Red River Trucking, LLC, 2015 ND 140, 864 N.W.2d 276, 2015 N.D. LEXIS 139 (N.D. 2015).
Modified Net Profit.
The method used by the trial court to derive net profits (a “modified net profit” approach) was improper, because it did not restrict the expenses that were deductible from the contract price to those which would have been incurred but for the breach of the contract, i.e., those expenses plaintiff did not have to pay because the defendant kept him from doing the work. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Proximately Caused.
Damages are proximately caused by a breach when they directly and naturally flow from the breach. First Nat'l Bank v. Burich, 367 N.W.2d 148, 1985 N.D. LEXIS 300 (N.D. 1985).
District court did not apply an incorrect legal standard on causation in finding that no damages resulted from the breach of an assignment of a sublease because it was not shown that a lender would have cured a breach of the sublease if given notice and opportunity; the proximate causation standard under this section did not incorporate a "reasonable lender" standard. First Dakota Nat'l Bank v. Eco-Energy, LLC, 881 F.3d 615, 2018 U.S. App. LEXIS 15951 (8th Cir. Neb. 2018).
Real Estate Contract.
This section was inapplicable to action for damages for breach of an agreement to convey an interest in real estate. Missouri Slope Livestock Auction v. Wachter, 107 N.W.2d 349, 1961 N.D. LEXIS 59 (N.D. 1961).
It was reversible error to base instructions on this section in action against seller for delay in conveying real estate; instructions should have been given on wrongful occupation of the property under N.D.C.C. § 32-03-21. Bumann v. Maurer, 203 N.W.2d 434, 1972 N.D. LEXIS 112 (N.D. 1972).
Seed Grain Warranty.
On the sale of seed grain under an implied warranty of fitness, the proper measure of damages for breach of the warranty resulting in a partial failure of the crop is the diminution in the crop value due to the breach. McLane v. F. H. Peavey & Co., 72 N.D. 468, 8 N.W.2d 308, 1943 N.D. LEXIS 82 (N.D. 1943).
Service Contract.
Where the contract is for service and the breach prevents the performance of that service, the value of the contract consists of two items: (1) The party’s reasonable expenditures toward performance, including costs paid, material wasted, and time and services spent on the contract, and (2) the anticipated profits. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Statutory Rule.
Where a contract is silent upon the measure of damages for its breach, the statutory rule prevails. Russell v. Olson, 22 N.D. 410, 133 N.W. 1030, 1911 N.D. LEXIS 60 (N.D. 1911).
Substantial Compliance.
Substantial compliance does not release a party from its obligation to respond in damages for injury resulting from a breach of contract. Biteler's Tower Serv. v. Guderian, 466 N.W.2d 141, 1991 N.D. LEXIS 16 (N.D. 1991).
Where a construction company had an oral contract with property owner to pour two concrete driveways on his property and the court had determined that the property owner had acquiesced to a time-and-materials price for the project and where the property owner had claimed a reduction in the balance owed to the construction company based upon a failure to substantially perform the contract, the district court did not err in refusing to reduce the amount owed to the construction company as the owner had not provided sufficient evidence regarding the diminution of value of the driveway to satisfy the requirements of N.D.C.C. § 32-03-09. There was no testimony from any expert regarding the usual life expectancy of similar concrete driveways; the value of this driveway, other than the time-and-materials invoice prepared by the construction company; or the cost of removing and replacing the driveway and, thus, the district court could reasonably conclude that the testimony that the life expectancy was reduced “30-40%” was too speculative to find diminution of value. Curtis Constr. Co. v. Am. Steel Span, Inc., 2005 ND 218, 707 N.W.2d 68, 2005 N.D. LEXIS 262 (N.D. 2005).
Collateral References.
Damages 117-126.
22 Am. Jur. 2d, Damages, §§ 44 et seq.
25 C.J.S. Damages, §§ 108-121.
Right to recover, in action for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.
Market price: necessity that buyer, relying on market price as measure of damages for seller’s breach of sales contract, show that goods in question were available for market at price shown, 20 A.L.R.2d 819.
Measure of damages for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.
Manufacturer: measure of damages for buyer’s breach of contract to purchase article from dealer or manufacturer’s agent, 24 A.L.R.2d 1008.
Architects: measure of damages recoverable from architect or other person furnishing plans for defects or insufficiency of work attributable thereto, 25 A.L.R.2d 1085.
Procuring breach of contract, 26 A.L.R.2d 1227.
Automobile collision insurance policy, measure of recovery by insured under, 43 A.L.R.2d 327.
Measure and elements of damages recoverable for breach of contract to support person, 50 A.L.R.2d 613.
Attorney: measure and basis of attorney’s recovery on express contract fixing noncontingent fees, where he is discharged without cause or fault on his part, 54 A.L.R.2d 604.
Employer’s damages for breach of employment contract by employee’s terminating employment, 61 A.L.R.2d 1008, 1010.
Lessee’s breach of agreement to erect building, measure and items of damages for, 63 A.L.R.2d 1110.
Marriage: measure and elements of damages for breach of contract to marry, 73 A.L.R.2d 553.
Minerals: damages for breach of implied obligation of purchaser to conduct search for, or to develop or work premises for, minerals other than oil and gas, 76 A.L.R.2d 721, 748.
Grower: measure of damages in action by grower under contract between grower of vegetable or fruit crops, and purchasing processor, packer, or canner, 87 A.L.R.2d 732, 779.
Lease: breach of contract to lease by lessor, 88 A.L.R.2d 1024, 1032.
Advertiser: measure of damages, to advertiser, for radio or television station’s breach or wrongful termination of contract, 90 A.L.R.2d 1199.
Water well drilling contract, driller’s damages for breach of, 90 A.L.R.2d 1346, 1405.
Notice: extent of recovery for attempt to terminate employment or agency contract upon shorter notice than that stipulated in contract, 96 A.L.R.2d 272, 277.
Drilling: right and measure of recovery for breach of obligation to drill exploratory oil or gas wells, 4 A.L.R.3d 284.
Profits: recovery for loss of profits from contemplated sale or use of land, where vendor fails or refuses to convey, 11 A.L.R.3d 719.
Schoolteacher: elements and measure of damages in action by schoolteacher for wrongful discharge, 22 A.L.R.3d 1047.
Franchises: damages to franchisee for failure of franchisor of national brand or service to provide the services or facilities contracted for, 41 A.L.R.3d 1436.
Insurer’s liability for consequential or punitive damages for wrongful delay or refusal to make payments due under contract, 47 A.L.R.3d 314.
Liability of insurance broker or agent to insured for failure to procure insurance, 64 A.L.R.3d 398.
Wills: measure of damages for breach of contract to will property, 65 A.L.R.3d 632.
Liability of insurance agent or broker on ground of inadequacy of life, health, and accident insurance procured, 72 A.L.R.3d 735.
Liability of insurance agent or broker on ground of inadequacy of property insurance coverage procured, 72 A.L.R.3d 747.
Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.
Measure and elements of damages in action against garageman based on failure to properly perform repair or service on motor vehicle, 1 A.L.R.4th 347.
Liability of termite or other pest control or inspection contractor for work or representations, 32 A.L.R.4th 682.
Recovery of punitive damages for breach of building or construction contract, 40 A.L.R.4th 110.
Amount of appropriation as limitation on damages for breach of contract recoverable by one contracting with government agency, 40 A.L.R.4th 998.
Modern status of rule as to whether cost of correction or difference in value of structures is proper measure of damages for breach of construction contract, 41 A.L.R.4th 131.
Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.
Damages for breach of contract as affected by income tax considerations, 50 A.L.R.4th 452.
Equipment leasing expense as element of construction contractor’s damages, 52 A.L.R.4th 712.
Recoverability of compensatory damages for mental anguish or emotional distress for breach of contract to lend money, 52 A.L.R.4th 826.
Application to commercial lease of rule that lease may be canceled only for “material” breach, 54 A.L.R.4th 595.
Recoverability of compensatory damages for mental anguish or emotional distress for breach of service contract, 54 A.L.R.4th 901.
Construction and effect of “changed conditions” clause in public works or construction contract with state or its subdivision, 56 A.L.R.4th 1042.
Specificity of description of premises as affecting enforceability of contract to convey real property — modern cases, 73 A.L.R.4th 135.
Recovery of attorneys’ fees and costs of litigation incurred as result of breach of agreement not to sue, 9 A.L.R.5th 933.
Liability of contractor who abandons building project before completion for liquidated damages for delay, 15 A.L.R.5th 376.
Liability of insurance agent or broker on ground of inadequacy of liability-insurance coverage procured, 60 A.L.R.5th 165.
32-03-09.1. Measure of damages for injury to property not arising from contract.
The measure of damages for injury to property caused by the breach of an obligation not arising from contract, except when otherwise expressly provided by law, is presumed to be the reasonable cost of repairs necessary to restore the property to the condition it was in immediately before the injury was inflicted and the reasonable value of the loss of use pending restoration of the property, unless restoration of the property within a reasonable period of time is impossible or impracticable, in which case the measure of damages is presumed to be the difference between the market value of the property immediately before and immediately after the injury and the reasonable value of the loss of use pending replacement of the property. Restoration of the property shall be deemed impracticable when the reasonable cost of necessary repairs and the reasonable value of the loss of use pending restoration is greater than the amount by which the market value of the property has been diminished because of the injury and the reasonable value of the loss of use pending replacement.
Source:
S.L. 1961, ch. 231, § 1.
Notes to Decisions
- Automobile Damage.
- Automobile Engine.
- Basis for Calculating Damages.
- Construction with Other Law.
- Diminution in Value.
- Evidence.
- Loss of Use.
- Plaintiff’s Election of Measure of Damages.
- Restitution.
Automobile Damage.
Fact that automobile owner was no mechanic and had not had considerable experience in repairing automobiles did not preclude him from expressing opinion whether it was possible to restore automobile to condition it was in immediately before collision where owner had been employed on occasion as appraiser, had appraised 25 to 30 automobiles, had taught computation of depreciation in business mathematics course and had, in connection therewith, made many visits to body shop where he discussed practical problems of appraisals with other instructors; owner was entitled to out-of-pocket costs of $182 for transportation while automobile was being repaired even though he recovered damages in amount based on diminution in car’s market value and did not replace it. Intlehouse v. Rose, 153 N.W.2d 810, 1967 N.D. LEXIS 94 (N.D. 1967).
Automobile Engine.
Where engine was negligently repaired by garage and had to be replaced by defendant while on a trip out of state, and the cost of replacement was less than the estimated cost of repairing the damaged engine, trial court properly assessed car owner’s damages as replacement cost of the engine. Randall v. Anderson, 286 N.W.2d 515, 1979 N.D. LEXIS 336 (N.D. 1979).
Basis for Calculating Damages.
Where plaintiffs damaged the defendants’ land by placing approximately 3556 cubic yards of fill over 1.8 acres of the land, defendants were awarded damages based upon their proposed method of restoration which required removing the fill placed on the land and restoring the land to its previous condition. North Shore v. Wakefield, 530 N.W.2d 297, 1995 N.D. LEXIS 52 (N.D. 1995).
Construction with Other Law.
Civil tort statute, N.D.C.C. § 32-03-09.1, explicitly references repair costs and diminutions in fair market value, but N.D.C.C. § 32-03-09.2, which provides for criminal liability for willful property damage, simply states that any person convicted of criminal mischief shall be responsible for the actual damages caused to real and personal property. The legislature chose the broader term “actual damages” because it sought to ensure that criminal victims and courts would have greater flexibility in measuring damages in cases of criminal mischief; implicitly, this flexibility encompasses use of replacement costs, among other measures, where appropriate. State v. Tupa, 2005 ND 25, 691 N.W.2d 579, 2005 N.D. LEXIS 25 (N.D. 2005).
Diminution in Value.
Diminution in value method for calculating measure of damages is applicable only when restoration of property is impossible or impracticable; restoration is impracticable when it costs more than amount by which property value has been reduced. Roll v. Keller, 356 N.W.2d 154, 1984 N.D. LEXIS 407 (N.D. 1984).
The thrust of this section is that either the cost to repair or the diminution in value, whichever is lower, is the measure which should be applied. Jablonsky v. Klemm, 377 N.W.2d 560, 1985 N.D. LEXIS 432 (N.D. 1985).
Evidence.
Because there was no evidence in the record establishing the cost of restoration, trial court did not err in awarding damages based on diminution in value of plaintiffs’ lands in action for damages caused by improper drainage by adjacent landowner. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).
Loss of Use.
Damages for loss of use may be awarded in addition to diminution in the value of the property. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).
Plaintiff’s Election of Measure of Damages.
When either diminution in value or cost of restoration is the appropriate measure of damages in a given case, plaintiff has the right to elect the measure deemed more accurate and, if defendant disagrees, he has the burden to prove the alternative measure is more appropriate. Plaintiffs were not required to present evidence of both measures of value. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).
Summary judgment appropriate where the plaintiff had been fully compensated for the loss of his pickup truck when he accepted the cost of the repair to his vehicle and could not then demand damages in the amount of the difference between the cost of a new truck and the amount received upon trading in the repaired truck. Sullivan v. Pulkrabek, 2000 ND 107, 611 N.W.2d 162, 2000 N.D. LEXIS 110 (N.D. 2000).
Restitution.
State had no statutory right to appeal a restitution order in a criminal case because, although an order for restitution affected with finality the State’s ability to obtain recompense for a crime victim, the victim could seek recovery of damages independent from any action by the State in a civil action to recover other or additional damages suffered as a result of the crime; and the right of restitution would not be undermined or lost without appellate review as the victim could maintain a civil action seeking recovery of damages. State v. Conry, 2020 ND 247, 951 N.W.2d 226, 2020 N.D. LEXIS 237 (N.D. 2020).
Law Reviews.
North Dakota Supreme Court Review (State ex rel. v. Center Mutual Insurance Co.), 83 N.D. L. Rev. 1085 (2007).
32-03-09.2. Liability for willful damages to property.
Any person convicted of criminal mischief shall be responsible for the actual damages to real and personal property and such damages may be recovered in a civil action in a court of competent jurisdiction. Additionally, any minor against whose parents a judgment may be entered pursuant to section 32-03-39 for damages resulting from action of the minor shall be jointly and severally liable with the parents of the minor for such action up to the maximum amount provided in section 32-03-39 and solely liable for any damages over that amount. Any judgment rendered pursuant to this section shall not be discharged in bankruptcy and shall not be subject to the statutes of limitations provided in chapter 28-01, nor shall such judgment be canceled pursuant to section 28-20-35.
Source:
S.L. 1977, ch. 302, § 1.
Notes to Decisions
Bankruptcy.
Where a judgment creditor obtained a default judgment against a Chapter 7 debtor on a claim of vandalism under N.D.C.C. § 32-03-09.2, in connection with the damage to property of the creditor’s insured, the debtor was not collaterally estopped from seeking a discharge of the debt because that portion of N.D.C.C. § 32-03-09.2 that provided that any judgment rendered pursuant to it shall not be discharged in bankruptcy was superseded by 11 U.S.C.S. § 523(a)(6) pursuant to U.S. Const. art. I, § 8. Acuity v. Wieser (In re Wieser), 2007 Bankr. LEXIS 4493 (Bankr. D.N.D. Apr. 4, 2007).
Method of Determining Damages.
Civil tort statute, N.D.C.C. § 32-03-09.1, explicitly references repair costs and diminutions in fair market value, but N.D.C.C. § 32-03-09.2, which provides for criminal liability for willful property damage, simply states that any person convicted of criminal mischief shall be responsible for the actual damages caused to real and personal property. The legislature chose the broader term “actual damages” because it sought to ensure that criminal victims and courts would have greater flexibility in measuring damages in cases of criminal mischief; implicitly, this flexibility encompasses use of replacement costs, among other measures, where appropriate. State v. Tupa, 2005 ND 25, 691 N.W.2d 579, 2005 N.D. LEXIS 25 (N.D. 2005).
There is a fundamental connection between the aim of N.D.C.C. § 32-03-09.2 and N.D.C.C. § 12.1-32-08, the criminal restitution statute; specifically, there is a strong correlation between the term “actual damages” in N.D.C.C. § 32-03-09.2 and the requirement that damages be “actually incurred” under the restitution statute. Thus, if replacement costs are applicable in one of these contexts, it seems only reasonable to permit their use in the other context as well. State v. Tupa, 2005 ND 25, 691 N.W.2d 579, 2005 N.D. LEXIS 25 (N.D. 2005).
32-03-10. Damages for breach of obligation to pay money.
The detriment caused by the breach of an obligation to pay money only is deemed to be the amount due by the terms of the obligation, with interest thereon.
Source:
Civ. C. 1877, § 1949; R.C. 1895, § 4979; R.C. 1899, § 4979; R.C. 1905, § 6564; C.L. 1913, § 7147; R.C. 1943, § 32-0310.
Derivation:
Cal. Civ. C., 3302.
Notes to Decisions
Exclusive Nature of Workers’ Compensation Act.
It is significant that this section is not part of Title 65, the Workers’ Compensation Act. The courts have previously said that “the North Dakota workers’ compensation program is mandatory, comprehensive, and exclusive. All rights and obligations under the program are determined by Title 65, N.D.C.C.” Because the Workers’ Compensation Act is comprehensive, the courts do not look to other portions of the Century Code when defining rights and obligations pursuant to it or when construing its provisions. Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 218, 1992 N.D. LEXIS 28 (N.D. 1992).
Warrants, Special Assessment Funds.
If warrants on special assessment funds, and interest coupons attached thereto, do not specify the rate of interest, they draw interest at the statutory rate. Drexel State Bank v. La Moure, 207 F. 702, 1913 U.S. Dist. LEXIS 1346 (D.N.D. 1913).
32-03-11. Damages for breach of covenants in grants.
The detriment caused by the breach of a covenant of seizin, of right to convey, of warranty, or of quiet enjoyment, in a grant of an estate in real property, is deemed to be:
- The price paid to the grantor, or if the breach is partial only, such proportion of the price as the value of the property affected by the breach bore at the time of the grant to the value of the whole property.
- Interest thereon for the time during which the grantee derived no benefit from the property, not exceeding six years.
- Any expense properly incurred by the covenantee in defending the covenantee’s possession.
Source:
Civ. C. 1877, § 1951; R.C. 1895, § 4981; R.C. 1899, § 4981; R.C. 1905, § 6566; C.L. 1913, § 7149; R.C. 1943, § 32-0311.
Derivation:
Cal. Civ. C., 3304.
Notes to Decisions
Covenant of Seizin.
Where the conveyance passes nothing to the grantee, the measure of damages for the breach of covenant of seizin is prima facie the consideration paid by the grantee with interest. Beulah Coal Mining Co. v. Heihn, 46 N.D. 646, 180 N.W. 787, 1920 N.D. LEXIS 71 (N.D. 1920).
Covenants Running with Land.
The only covenants which run with the land are those of warranty for quiet enjoyment, and for further assurance. Gale v. Frazier, 30 N.W. 138, 4 Dakota 196, 1886 Dakota LEXIS 15 (Dakota 1886), aff'd, 144 U.S. 509, 12 S. Ct. 674, 36 L. Ed. 521, 1892 U.S. LEXIS 2094 (U.S. 1892); Bowne v. Wolcott, 1 N.D. 497, 48 N.W. 426, 1891 N.D. LEXIS 15 (N.D. 1891).
Variations from Rule.
The statutory rule is not iron clad but is subject to the same variations as the common-law rule previously existing. Bowne v. Wolcott, 1 N.D. 415, 48 N.W. 336, 1891 N.D. LEXIS 6 (N.D. 1891).
Collateral References.
Measure of damages for breach of covenant for quiet enjoyment in lease, 41 A.L.R.2d 1414, 1454.
32-03-12. Damages for breach of covenant against encumbrances.
The detriment caused by the breach of a covenant against encumbrances in a grant of an estate in real property is deemed to be the amount which has been expended actually by the covenantee in extinguishing either the principal or interest thereof, not exceeding in the former case a proportion of the price paid to the grantor, equivalent to the relative value at the time of the grant of the property affected by the breach as compared with the whole, or, in the latter case, interest on a like amount.
Source:
Civ. C. 1877, § 1952; R.C. 1895, § 4982; R.C. 1899, § 4982; R.C. 1905, § 6567; C.L. 1913, § 7150; R.C. 1943, § 32-0312.
Derivation:
Cal. Civ. C., 3305.
Notes to Decisions
Failure of Consideration.
The defense of a total or partial failure of consideration may be interposed in an action on promissory notes given for the purchase price of land in case of breach of a covenant against encumbrances, if the maker has paid off the encumbrances. Dahl v. Stakke, 12 N.D. 325, 96 N.W. 353, 1903 N.D. LEXIS 35 (N.D. 1903).
32-03-13. Damages for breach of agreement to convey realty.
The detriment caused by the breach of an agreement to convey an estate in real property is the difference between the price agreed to be paid and the value of the estate agreed to be conveyed at the time of the breach and the expenses properly incurred in examining the title, and in preparing to enter upon the land, and the amount paid on the purchase price, if any, with interest thereon from the time of the breach.
Source:
Civ. C. 1877, § 1953; R.C. 1895, § 4983; R.C. 1899, § 4983; R.C. 1905, § 6568; C.L. 1913, § 7151; R.C. 1943, § 32-0313.
Derivation:
Cal. Civ. C., 3306.
Notes to Decisions
Assessment of General Damages.
In action for breach of contract to sell land, an allegation in the complaint that the plaintiff has sustained damages in a certain amount is sufficient to justify the assessment of general damages. Merritt v. Adams County Land & Inv. Co., 29 N.D. 496, 151 N.W. 11, 1915 N.D. LEXIS 25 (N.D. 1915).
Delay in Conveying.
This section applies to situations in which specific performance of real estate contract is impossible or impracticable; where performance is merely delayed, N.D.C.C. § 32-03-21 applies. Bumann v. Maurer, 203 N.W.2d 434, 1972 N.D. LEXIS 112 (N.D. 1972).
Expenses of Buyer.
In an action for damages for breach of contract to convey real estate, the measure of damages is the difference between the price to be paid under the contract and the value of the land at the time of breach, plus the expenses incurred by the buyer in examining title and preparing to use the land. Missouri Slope Livestock Auction v. Wachter, 107 N.W.2d 349, 1961 N.D. LEXIS 59 (N.D. 1961).
Collateral References.
Vendor and Purchaser 351.
77 Am. Jur. 2d, Vendor and Purchaser, §§ 441 et seq.
92 C.J.S. Vendor and Purchaser, §§ 687-695.
Specific performance, legal damages recoverable as for breach of contract by purchaser asserting right to, 7 A.L.R.2d 1204.
Vendee’s recovery under executory contract for purchase of real property where vendor is unable or refuses to convey, 17 A.L.R.2d 1300, 1365.
Preparation: right to recover, in action for breach of contract to convey lands, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.
Profits: recovery for loss of profits from contemplated sale or use of land, where vendor fails or refuses to convey, 11 A.L.R.3d 719.
Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.
32-03-14. Damages for breach of agreement to buy realty.
The detriment caused by the breach of an agreement to purchase an estate in real property is deemed to be the excess, if any, of the amount which would have been due to the seller under the contract over the value of the property.
Source:
Civ. C. 1877, § 1954; R.C. 1895, § 4984; R.C. 1899, § 4984; R.C. 1905, § 6569; C.L. 1913, § 7152; R.C. 1943, § 32-0314.
Derivation:
Cal. Civ. C., 3307.
Notes to Decisions
Ambiguous Earnest Money Clause.
Summary judgment in a real estate purchase dispute was error where the earnest money clause in the purchase agreement providing for liquidated damages “without prejudice of other rights and legal remedies” was ambiguous, requiring extrinsic evidence to determine the intentions of the parties. Dosland v. Netland, 424 N.W.2d 141, 1988 N.D. LEXIS 131 (N.D. 1988).
Measure of Damages.
—In General.
The measure of damages to the seller is the difference between the contract price and the salable or market value of the land at the time of the breach, after giving the vendee credit for any sums paid. Gerhardt v. Fleck, 256 N.W.2d 547, 1977 N.D. LEXIS 156 (N.D. 1977).
This section allows as damages the difference between the contract price and the salable or market value of the property at the time of the breach, after giving credit for any sums paid. Hagan v. Havnvik, 421 N.W.2d 56, 1988 N.D. LEXIS 72 (N.D. 1988).
—Alternative Measure Not Prohibited.
This section does not prohibit parties from establishing an alternative measure of liquidated damages for breach of contracts for the purchase of real estate. Fisher v. Schmeling, 520 N.W.2d 820, 1994 N.D. LEXIS 191 (N.D. 1994).
—-Excess.
District court did not err in entering a default judgment award which was different than that prayed for in the demand for judgment as N.D.C.C. § 32-03-14 allowed for damages for breach of an agreement to buy realty by determining the excess of the amount which would have been due to the seller under the contract over the value of the property, and N.D.R.Civ.P. 54(c) did not specify that the damages prayed for be in the seller’s complaint, but rather that it be included in the demand for judgment. Shull v. Walcker, 2009 ND 142, 770 N.W.2d 274, 2009 N.D. LEXIS 148 (N.D. 2009).
Collateral References.
Vendor and Purchaser 330.
77 Am. Jur. 2d, Vendor and Purchaser, §§ 441 et seq.
92 C.J.S. Vendor and Purchaser, § 636.
Provision in land contract for liquidated damages upon default of purchaser as affecting right of vendor to maintain action for damages for breach of contract, 39 A.L.R.5th 33.
32-03-15. Damages for breach of carrier’s obligation to accept freight, messages, or passengers.
The detriment caused by the breach of a carrier’s obligation to accept freight, messages, or passengers is deemed to be the difference between the amount which the carrier had a right to charge for the carriage and the amount it would be necessary to pay for the same service when it ought to be performed.
Source:
Civ. C. 1877, § 1962; R.C. 1895, § 4992; R.C. 1899, § 4992; R.C. 1905, § 6577; C.L. 1913, § 7160; R.C. 1943, § 32-0315.
Derivation:
Cal. Civ. C., 3315.
Collateral References.
Carriers 45, 236(2); Telecommunications 206, 277-279.
13 Am. Jur. 2d, Carriers, § 291; 74 Am. Jur. 2d, Telecommunications, §§ 54 et seq.
Preparation: right to recover, in action against carrier for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.
Extent of liability of carrier for deviation in transportation of property, 33 A.L.R.2d 145, 230.
Change of vehicles: duty and liability of carrier with respect to allowing passenger sufficient time for change of vehicles, 40 A.L.R.2d 809.
C.O.D.: liability of carrier for delivering goods sent C.O.D. without receiving cash payment, 27 A.L.R.3d 1320.
32-03-16. Damages for breach of carrier’s obligation to deliver freight.
The detriment caused by the breach of a carrier’s obligation to deliver freight, when the carrier has not converted it to the carrier’s own use, is deemed to be the value thereof at the place and on the day at which it should have been delivered, deducting the freightage to which the carrier would have been entitled if the carrier had completed the delivery.
Source:
Civ. C. 1877, § 1963; R.C. 1895, § 4993; R.C. 1899, § 4993; R.C. 1905, § 6578; C.L. 1913, § 7161; R.C. 1943, § 32-0316.
Derivation:
Cal. Civ. C., 3316.
Collateral References.
Carriers 135, 229.
14 Am. Jur. 2d, Carriers, §§ 481 et seq.
Market value: measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.
Unauthorized delivery, shipper’s ratification of carrier’s, 15 A.L.R.2d 807.
Preparation: right to recover, in action against carrier for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.
Contributory negligence as affecting railroad carrier’s liability for loss of baggage or effects accompanying passenger, 32 A.L.R.2d 630.
Insurance: coverage of policy insuring motor carrier against liability for loss of or damage to shipped property, 36 A.L.R.2d 506.
Improper loading, liability of carrier by land for damage to goods shipped resulting from, 44 A.L.R.2d 993.
Passenger’s baggage or packages, liability of carrier for loss of, 68 A.L.R.2d 1350.
Misdescription of goods by shipper as affecting carrier’s liability for loss or damage, 1 A.L.R.3d 736.
Improper packing by carrier, liability of carrier by land for damage to goods resulting from, 7 A.L.R.3d 723.
Nonagency station: validity and construction of stipulation exempting carrier from liability for loss or damage to property at nonagency station, 16 A.L.R.3d 1111.
Insurance against loss of or damage to shipment, construction and effect of provision in shipping contract or bill of lading that carrier shall have benefit of shipper’s, 27 A.L.R.3d 984.
C.O.D.: liability of carrier for delivering goods sent C.O.D. without receiving cash payment, 27 A.L.R.3d 1320.
32-03-17. Damages for carrier’s delay.
The detriment caused by a carrier’s delay in the delivery of freight is deemed to be the depreciation in the intrinsic value of the freight during the delay and also the depreciation, if any, in the market value thereof, otherwise than by reason of a depreciation in the intrinsic value, at the place where it ought to have been delivered between the day at which it ought to have been delivered and the day of its actual delivery.
Source:
Civ. C. 1877, § 1964; R.C. 1895, § 4994; R.C. 1899, § 4994; R.C. 1905, § 6579; C.L. 1913, § 7162; R.C. 1943, § 32-0317.
Derivation:
Cal. Civ. C., 3317.
Collateral References.
Carriers 105, 213, 229.
13 Am. Jur. 2d, Carriers, §§ 421 et seq.
Unauthorized delivery: shipper’s ratification of carrier’s unauthorized delivery, 15 A.L.R.2d 807.
Preparation: right to recover, in action against carrier for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300, 1365.
Extent of liability of carrier for deviation in transportation of property, 33 A.L.R.2d 145, 230.
32-03-18. Damages for breach of warranty of agent’s authority.
The detriment caused by the breach of a warranty of an agent’s authority is deemed to be the amount which could have been recovered and collected from the agent’s principal if the warranty had been complied with and the reasonable expenses of legal proceedings taken in good faith to enforce the act of the agent against the agent’s principal.
Source:
Civ. C. 1877, § 1965; R.C. 1895, § 4995; R.C. 1899, § 4995; R.C. 1905, § 6580; C.L. 1913, § 7163; R.C. 1943, § 32-0318.
Derivation:
Cal. Civ. C., 3318.
Notes to Decisions
Breach of Agent’s Warranty.
One injured by the breach of an agent’s warranty of authority may recover damages as provided by the statute in the amount which could have been recovered and collected from the principal if the warranty had been complied with, and the reasonable expense of legal proceedings taken in good faith to enforce the act of the agent against his principal. Kennedy v. Stonehouse, 13 N.D. 232, 100 N.W. 258, 1904 N.D. LEXIS 35 (N.D. 1904).
32-03-19. Damages for breach of promise to marry. [Repealed]
Repealed by S.L. 1997, ch. 51, § 40.
32-03-20. Measure of damages for tort.
For the breach of an obligation not arising from contract, the measure of damages, except when otherwise expressly provided by law, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.
Source:
Civ. C. 1877, § 1967; R.C. 1895, § 4997; R.C. 1899, § 4997; R.C. 1905, § 6582; C.L. 1913, § 7165; R.C. 1943, § 32-0320.
Derivation:
Cal. Civ. C., 3333.
Notes to Decisions
- Assault Committed with Malice.
- Breach of Obligation.
- Common-Law Rule.
- Conversion.
- Delay in Transportation.
- Future Earnings.
- Growing Crops.
- Injury to Property.
- Insanity Proceedings, Unwarranted Prosecution.
- Jury Instructions.
- Killing of Animal.
- Misrepresentation and Deceit.
- Mitigation of Damages.
- Personal Injuries.
- Proximate Cause.
- Special Damages.
- Trespass.
- Wrongful Death.
Assault Committed with Malice.
Exemplary damages may be awarded for an assault where it is committed with malice, either actual or presumed, and malice authorizing such recovery may be presumed from the wanton and reckless manner in which the wrongful act was committed. Shoemaker v. Sonju, 15 N.D. 518, 108 N.W. 42, 1906 N.D. LEXIS 57 (N.D. 1906).
Breach of Obligation.
The measure of damages for breach of an obligation which does not arise out of a contract is an amount that will compensate for all detriment proximately caused. Wilson v. Northern Pac. Ry., 30 N.D. 456, 153 N.W. 429, 1915 N.D. LEXIS 153 (N.D. 1915).
Award of derivative damages based on an analysis by the minority limited partners’ expert witness who calculated the reasonable profits and distributions that could have been realized if the majority limited partners in two partnerships had not breached their fiduciary duties and dissolved the partnerships was not unreasonable and speculative. Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206, 2008 N.D. LEXIS 118 (N.D. 2008).
Common-Law Rule.
The measure of damages in tort is the same as at common law. Needham v. H. S. Halverson & Co., 22 N.D. 594, 135 N.W. 203, 1912 N.D. LEXIS 59 (N.D. 1912).
Conversion.
In an action to recover for an alleged wrongful levy by defendant, as county sheriff, upon certain property upon which the plaintiff held a chattel mortgage, the measure of damage was the value of the property at the time of the levy, and a fair compensation to the mortgagee for the time and money properly expended in pursuit of the property. Keith v. Haggart, 33 N.W. 465, 4 Dakota 438, 1887 Dakota LEXIS 13 (Dakota 1887).
The measure of damages for the wrongful conversion of an executory contract for the sale of land, except when otherwise expressly provided, is the amount which will compensate the party injured for all detriment approximately caused thereby. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).
Exemplary damages may be awarded for conversion when the conduct of the wrongdoer has been oppressive, malicious, or fraudulent. Lamoreaux v. Randall, 53 N.D. 697, 208 N.W. 104, 1926 N.D. LEXIS 28 (N.D. 1926).
Delay in Transportation.
Where a passenger sustains damage by reason of misinformation as to trains given by carrier’s employees, the carrier is liable for the actual damages sustained by the passenger by reason of such misdirection. Weeks v. Great N. Ry., 43 N.D. 426, 175 N.W. 726, 1919 N.D. LEXIS 65 (N.D. 1919).
Future Earnings.
In an action for wrongful death, the trial court should have given the defendant’s offered instruction to reduce to present cash value the amount that decedent probably would have contributed to his family’s support in the future, but failure to give such instruction was not reversible error where the instructions did not preclude reduction to present value and where the verdict was reasonable as tested by the present value standard. Geier v. Tjaden, 74 N.W.2d 361, 1955 N.D. LEXIS 166 (N.D. 1955).
Since this section includes the concept of present compensation for loss of future earning power, defendant in personal injury action was not entitled to personal summary judgment on plaintiff’s prayer for damages arising out of loss of future profits from farming operation; even though compensable, the loss of future profits in a farming venture is usually so speculative that any evidence addressed to proving it will be subjected to harsh scrutiny and no verdict or finding of fact of loss of profit will be allowed to stand unless the proof is clear and unequivocal. Shelver v. Simonsen, 369 F. Supp. 4, 1973 U.S. Dist. LEXIS 10613 (D.N.D. 1973).
Growing Crops.
Where attachment was improvidently issued and the taking of plaintiffs’ property prevented the harvest of crop at the proper time so that the crop was damaged by the weather, the detriment was proximately caused by the act of wrongful attachment and deprivation of possession, even though at the time of attachment the creditor did not anticipate any such result. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).
In tort action by farmer against herbicide manufacturer for damage to wheat caused by defective herbicide, farmer was not entitled to recover the costs of the herbicide, the costs of incorporating the herbicide into the soil, or the costs of planting the wheat as these items of expense did not flow from the injury caused by the defective herbicide, but preceded that injury, and constituted a restitution claim while the farmer had elected to proceed on a tort claim, and farmer could not recover the costs of discing the land, cultivating, applying the fertilizer, or the cost of the wheat seed as these costs were incurred as part of the normal farming operations without regard to the damage caused by the defective herbicide; measure of damages recoverable by the farmer was the value at maturity which the probable crop would have had except for the injury, less the value the injured crop actually had at maturity, and less any reduction in amount and value of labor and expense attributable to the reduced yield. Johnson v. Monsanto Co., 303 N.W.2d 86, 1981 N.D. LEXIS 233 (N.D. 1981).
Injury to Property.
The measure of damages for the total injury to ice in the plaintiff’s ice house by reason of the collapse of the building caused by the excavation on the defendant’s land was the market value of such ice at the time and place of the injury, with interest. Slattery v. Rhud, 23 N.D. 274, 136 N.W. 237, 1912 N.D. LEXIS 89 (N.D. 1912).
In an action to recover damages for injury to store building, plaintiff’s damages was the difference between the value of the building prior to the injury and its value afterwards, where there was no evidence as to the cost of repairs. Harke v. Ewald, 51 N.D. 828, 200 N.W. 1009, 1924 N.D. LEXIS 76 (N.D. 1924).
Where grocery store fell into excavation on adjoining lot, anticipated profits could be used as a measure of damages only if reasonably certain in character and the loss was the proximate result of a tort. Truscott v. Peterson, 78 N.D. 498, 50 N.W.2d 245, 1951 N.D. LEXIS 127 (N.D. 1951).
Where fixtures are wrongfully severed from realty of which they have become a part, the measure of damages is the value of the fixtures as they were in place as a part of the realty immediately preceding removal. Gussner v. Mandan Creamery & Produce Co., 78 N.D. 594, 51 N.W.2d 352, 1952 N.D. LEXIS 68 (N.D. 1952).
Where a stubble fire prevented use of a pasture for grazing cattle for a full year, the measure of damages for the negligent setting of such fire was the value of the use of the property to the plaintiff for the time he was deprived of such use. Schmeet v. Schumacher, 137 N.W.2d 789, 1965 N.D. LEXIS 113 (N.D. 1965).
Insanity Proceedings, Unwarranted Prosecution.
The unwarranted prosecution of an insanity proceeding is a legal wrong for which the party injured may be compensated. Pickles v. Anton, 49 N.D. 47, 189 N.W. 684, 1922 N.D. LEXIS 9 (N.D. 1922).
Jury Instructions.
In an action for damages for personal injuries arising from negligence of defendants, giving of an instruction on measure of damages which was almost a verbatim quote of this section was not error. Kuntz v. Stelmachuk, 136 N.W.2d 810, 1965 N.D. LEXIS 126 (N.D. 1965).
Jury instruction on damages for deceit was proper where the instruction was close to a verbatim expression of the statutory measure of damages set out in this section. Delzer v. United Bank, 1997 ND 3, 559 N.W.2d 531, 1997 N.D. LEXIS 9 (N.D. 1997).
Killing of Animal.
An owner may recover special damages for rearing a suckling colt due to the killing of the dam. McDonell v. Minneapolis, S. P. & S. S. M. Ry., 17 N.D. 606, 118 N.W. 819, 1908 N.D. LEXIS 91 (N.D. 1908).
Misrepresentation and Deceit.
In an action to recover damages for alleged deceit in the exchange of property for corporate stock, where plaintiff had affirmed the contract after discovering the deceit, the measure of damages, in the absence of a claim for special damages, was the difference in value between what was received or parted with, and what would have been received or parted with, had there been no fraudulent representation. Beare v. Wright, 14 N.D. 26, 103 N.W. 632, 1905 N.D. LEXIS 36 (N.D. 1905).
In an action for deceit in misrepresenting the value of land sold, the measure of damages, under section 1967 of the Civil Code of 1877, was the loss sustained by reason of the fraud. Glaspell v. Northern P. R. Co., 43 F. 900, 1890 U.S. App. LEXIS 1782 (C.C.D.N.D. 1890), rev'd, 144 U.S. 211, 12 S. Ct. 593, 36 L. Ed. 409, 1892 U.S. LEXIS 2073 (U.S. 1892).
Mitigation of Damages.
In an action to recover damages, plaintiff has a duty to minimize or mitigate his damages and is not entitled to recover for damages which could have been avoided by reasonable efforts under the existing circumstances. Johnson v. Monsanto Co., 303 N.W.2d 86, 1981 N.D. LEXIS 233 (N.D. 1981).
Personal Injuries.
A woman housekeeper with no income suing for injuries received in a collision, when the tort is admitted or proven, is entitled to reasonable compensation for loss of capacity to perform her duties as housekeeper and for physical injuries, pain, and suffering. Lake v. Neubauer, 87 N.W.2d 888, 1958 N.D. LEXIS 63 (N.D. 1958).
In an action for damages for personal injuries sustained as the result of an automobile accident, the evidence supported a finding that plaintiff was entitled to $57,000 general damages and the fact that plaintiff was a member of the armed forces did not mean that he could not recover the reasonable value of medical and hospital services rendered without charge by a government hospital. Gillis v. Farmers Union Oil Co., 186 F. Supp. 331, 1960 U.S. Dist. LEXIS 3433 (D.N.D. 1960).
Proximate Cause.
If two causes unite to produce an injury, one the negligent act or omission of a municipality and the other something for which neither the municipality nor the party injured was responsible, and if the injury could not have resulted except for the negligent act or omission of the municipality, such act or omission is the proximate cause of the injury. Ouverson v. Grafton, 5 N.D. 281, 65 N.W. 676, 1895 N.D. LEXIS 33 (N.D. 1895).
Where death was caused by a pulmonary embolism following injuries in a vehicular collision caused by defendant’s negligence, it was immaterial whether the embolism was caused directly by the injuries or resulted from surgery made necessary by the injuries, as in either event the chain of causation reaches back to the defendant’s negligence. Geier v. Tjaden, 74 N.W.2d 361, 1955 N.D. LEXIS 166 (N.D. 1955).
Special Damages.
In order to recover for special damages, such damages must be proved to a reasonable degree of certainty and must not be too remote. Johnson v. Monsanto Co., 303 N.W.2d 86, 1981 N.D. LEXIS 233 (N.D. 1981).
Trespass.
Only such damages may be recovered where a trespass is not willful as will compensate the injured party for all detriment proximately caused by such trespass. Peterson v. Conlan, 18 N.D. 205, 119 N.W. 367, 1909 N.D. LEXIS 3 (N.D. 1909).
Wrongful Death.
A substantial loss will be presumed in the wrongful death of a minor child, and pecuniary loss need not be established by proof in dollars and cents. Perleberg v. General Tire & Rubber Co., 221 N.W.2d 729, 1974 N.D. LEXIS 175 (N.D. 1974).
Collateral References.
Damages 95-116.
22 Am. Jur. 2d, Damages, §§ 119 et seq.
25 C.J.S. Damages, §§ 105-107, 122-164.
Overflow of land caused by artificial construction or obstruction, 5 A.L.R.2d 302.
Marriage of child, or probability of marriage, as affecting measure of recovery by parents in death action, 7 A.L.R.2d 1380.
Changes in cost of living or in purchasing power of money as affecting damages for personal injuries or death, 12 A.L.R.2d 611.
Market value: measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.
Death of infant, measure and elements of damages for personal injury resulting in, 14 A.L.R.2d 485.
Prospective damages: award of “present worth” of prospective losses in action to recover damages for personal injury resulting in death of infant, 14 A.L.R.2d 485.
Privacy, damages for invasion of right of, 14 A.L.R.2d 750, 57 A.L.R.3d 16.
Board or lodging furnished to injured person in connection with hospital or nursing care, effect on damages recoverable in personal injury action, 18 A.L.R.2d 659.
Social club or similar society, damages recoverable for expulsion from, 20 A.L.R.2d 344, 393.
Church or religious society, damages recoverable for suspension or expulsion from, 20 A.L.R.2d 421.
Corporate stock: measure of damages for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.
Interference with employment, measure of damages for, 26 A.L.R.2d 1273.
Contract, damages for procuring breach of, 26 A.L.R.2d 1227.
Insurance application: measure of damages in tort action arising out of delay in passing upon application for insurance, 32 A.L.R.2d 487, 536.
Warehousemen: damages recoverable from warehousemen for negligence causing injury to, or destruction of, goods of a perishable nature, 32 A.L.R.2d 910.
Infants: what items of damages on account of personal injury to infant belong to him, and what to parent, 32 A.L.R.2d 1060.
Assistant: cost of hiring substitute or assistant during incapacity of injured party as item of damages in action for personal injury, 37 A.L.R.2d 364.
Attachment: recovery of value of use of property wrongfully attached, 45 A.L.R.2d 1221.
Conditional seller’s misconduct in connection with repossession and resale of property, damages for, 49 A.L.R.2d 15.
Pollution of stream, measure and elements of damages for, 49 A.L.R.2d 253, 267.
Annuity: cost of annuity as factor for consideration in fixing damages, 53 A.L.R.2d 1454.
Employment: damages recoverable by employer from third person tortiously killing or injuring employee, 57 A.L.R.2d 802, 812.
Trees and shrubbery, measure of damages for destruction of or injury to, 69 A.L.R.2d 1335.
Credit or financial condition of third person, measure of damages recoverable for fraud as to, 72 A.L.R.2d 943.
Airplane, measure of damages for destruction of or injury to, 73 A.L.R.2d 719.
Livestock: measure and elements of damages in action other than one against a carrier, 79 A.L.R.2d 677.
Commercial paper, measure of damages for conversion or loss of, 85 A.L.R.2d 1349.
Earth: measure of damages for wrongful removal of earth, sand, or gravel from land, 1 A.L.R.3d 801.
Motor vehicle damaged or destroyed, recovery for loss of use of, 18 A.L.R.3d 497.
False imprisonment or arrest or malicious prosecution, attorneys’ fees as element of damages in action for, 21 A.L.R.3d 1068.
Sterilization or birth control procedures, medical malpractice, and measure and elements of damages, in connection with, 27 A.L.R.3d 906.
Shock: right to recover damages in negligence for fear of injury to another, or shock or mental anguish at witnessing such injury, 29 A.L.R.3d 1337.
Corporate stock or certificate, measure of damages for conversion of, 31 A.L.R.3d 1286.
Discrimination: recovery of damages for emotional distress resulting from racial, ethnic, or religious abuse or discrimination, 40 A.L.R.3d 1290.
Business profits: profits of business as factor in determining loss of earnings or earning capacity in action for personal injury or death, 45 A.L.R.3d 345.
Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.
Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.
Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.
Per diem or similar mathematical basis for fixing damages for pain and suffering, 3 A.L.R.4th 940.
Liability for interference with at will business relationship, 5 A.L.R.4th 9.
Liability for wrongful autopsy, 18 A.L.R.4th 858.
Effect of anticipated inflation on damages for future losses—modern cases, 21 A.L.R.4th 21.
Loss of enjoyment of life as a distinct element or factor in awarding damages for bodily injury, 34 A.L.R.4th 293.
Validity of state statute providing for periodic payment of future damages in medical malpractice action, 41 A.L.R.4th 275.
Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit, 43 A.L.R.4th 19.
Third-party tortfeasor’s right to have damages recovered by employee reduced by amount of employee’s workers’ compensation benefits, 43 A.L.R.4th 849.
Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.
Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in farming, ranching, or agricultural labor, 46 A.L.R.4th 220.
Recoverability from tortfeasor of cost of diagnostic examinations absent proof of actual bodily injury, 46 A.L.R.4th 1151.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of homemaker, 47 A.L.R.4th 100.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.
Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest, 48 A.L.R.4th 165.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons, 48 A.L.R.4th 229.
Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.
Future disease or condition or anxiety relating thereto, as element of recovery, 50 A.L.R.4th 13.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional, white-collar, and nonmanual occupations, 50 A.L.R.4th 787.
Excessiveness or inadequacy of compensatory damages for malicious prosecution, 50 A.L.R.4th 843.
Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 A.L.R.4th 853.
Parent’s right to recover for loss of consortium in connection with injury to child, 54 A.L.R.4th 112.
Business interruption, without physical damage, as actionable, 65 A.L.R.4th 1126.
Measure and element of damages for pollution of well or spring, 76 A.L.R.4th 629.
Recovery of damages for loss of consortium resulting from death of child—modern status, 77 A.L.R.4th 411.
Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation — Twentieth Century cases, 90 A.L.R.4th 1033.
Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.
Damages for killing or injuring dog, 61 A.L.R.5th 635.
Nonuse of seatbelt as reducing amount of damages recoverable, 62 A.L.R.5th 537.
Validity of state statutory cap on punitive damages, 103 A.L.R.5th 379.
Exemplary or punitive damages for pharmacist’s wrongful conduct in preparing or dispensing medical prescription — Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072), 109 A.L.R.5th 397.
Liability of Property Owners to Persons Who Have Never Been on or Near Their Property for Exposure to Asbestos Carried Home on Household Member’s Clothing, 33 A.L.R.6th 325.
Law Reviews.
North Dakota Legal Malpractice: A Summary of the Law, 70 N.D. L. Rev. 615 (1994).
For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).
North Dakota Supreme Court Review, (Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206 (2008)), see 85 N. Dak. L. Rev. 503 (2009).
32-03-21. Damages for wrongful occupation of realty.
The detriment caused by the wrongful occupation of real property in cases not embraced in sections 32-03-22, 32-03-27, 32-03-28, and 32-03-29 is deemed to be the value of the use of the property for the time of such occupation, not exceeding six years next preceding the commencement of the action or proceeding to enforce the right to damages and the costs, if any, of recovering the possession.
Source:
Civ. C. 1877, § 1968; R.C. 1895, § 4998; R.C. 1899, § 4998; R.C. 1905, § 6583; C.L. 1913, § 7166; R.C. 1943, § 32-0321.
Derivation:
Cal. Civ. C., 3334.
Notes to Decisions
Assignment of Rents.
An assignment of rents by the owner of a life estate in real property which a county had entered and possessed under a tax deed, assigned no right or claim against the county. Sailer v. Mercer County, 75 N.D. 123, 26 N.W.2d 137, 1947 N.D. LEXIS 52 (N.D. 1947).
Delay in Sale of Real Property.
In action for breach of real estate contract based on seller’s delay in conveying the property, instructions on damages should have been based on this section, and not on N.D.C.C. §§ 32-03-09 or 32-03-13. Bumann v. Maurer, 203 N.W.2d 434, 1972 N.D. LEXIS 112 (N.D. 1972).
Right to Recover.
The relationship of landlord and tenant is not essential to a recovery of the value of the use and occupation of real property. Belakjon v. Hilstad, 76 N.D. 298, 35 N.W.2d 637, 1949 N.D. LEXIS 57 (N.D. 1949).
Defendant's use of plaintiff's property for disposal of off-lease saltwater was intentional and amounted to civil trespass because its use of property for that purpose went beyond its rights under lease. Injunction against further use of property for that purpose was appropriate, and plaintiff was entitled to statutory damages in same amount as would be appropriate if restitution principles were applied, but plaintiff was not entitled to punitive damages because it failed to prove that defendant acted with oppression, fraud, or actual malice. Raaum Estates v. Murex Petroleum Corp., 2017 U.S. Dist. LEXIS 103345 (D.N.D. July 5, 2017).
Collateral References.
Delay: compensation or damages awarded purchaser for delay in conveyance of land, 7 A.L.R.2d 1204.
Trespass: damages in action of trespass by tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192, 1210.
Measure of damages for tenant’s failure to surrender possession of rented premises, 32 A.L.R.2d 582, 611.
Delay: measure of vendee’s recovery in action for damages for vendor’s delay in conveying real property, 74 A.L.R.2d 578.
Special or consequential damages recoverable, on account of delay in delivering possession, by purchaser of real property awarded specific performance, 11 A.L.R.4th 891.
32-03-22. Damages for willful detention of realty.
For willfully holding over real property by a person who entered upon the same as guardian or trustee for an infant or by right of an estate terminable with any life or lives after the termination of the trust or particular estate without the consent of the party immediately entitled after such termination, the measure of damages is the value of the profits received during such holding over.
Source:
Civ. C. 1877, § 1969; R.C. 1895, § 4999; R.C. 1899, § 4999; R.C. 1905, § 6584; C.L. 1913, § 7167; R.C. 1943, § 32-0322.
Derivation:
Cal. Civ. C., 3335.
32-03-23. Damages for conversion of personalty.
The detriment caused by the wrongful conversion of personal property is presumed to be:
- The value of the property at the time of the conversion, with the interest from that time; or
- When the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and
- A fair compensation for the time and money properly expended in pursuit of the property.
Source:
Civ. C. 1877, § 1970; S.L. 1885, ch. 42, § 1; R.C. 1895, § 5000; R.C. 1899, § 5000; R.C. 1905, § 6585; C.L. 1913, § 7168; R.C. 1943, § 32-0323.
Derivation:
Cal. Civ. C., 3336.
Note.
This section was first enacted by the Dakota Territory Legislative Assembly in 1866. The source of this enactment was the Field Civil Code.
Notes to Decisions
- Alternative Remedies.
- Attorneys’ Fees.
- Certificates of Deposit.
- Conversion of Parts.
- Diligence in Commencing Action.
- Executory Contract for Sale of Land.
- Exemplary Damages.
- Grain.
- Illegal Levy.
- Interest on Damage Award Mandatory.
- Lien or Other Special Interest.
- Money Expended in Pursuit.
- Sale of Corporate Stock.
- Special Damages.
- Statutory Rule.
- Stock of Goods.
- Time Expended in Pursuit.
- Verdict.
Alternative Remedies.
This section recognizes alternatives for one whose personal property is converted: (1) recovery of the value of the property with interest from the time of its conversion, or (2) recovery of the highest market value of the property at any time between the conversion and the verdict, but without interest. The injured party is given the benefit of any substantial appreciation in value after the conversion and before the verdict, but has the alternative option to collect interest. National Bank v. International Harvester Co., 421 N.W.2d 799, 1988 N.D. LEXIS 38 (N.D. 1988).
This section sets out alternative bases for valuing converted property: (1) The value of the property with interest from the time of its conversion, or (2) the highest market value of the property at any time between the conversion and the verdict, but without interest. Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).
In seeking damages for conversion, a property owner is required to first elect to utilize either N.D.C.C. § 32-03-23(1) or N.D.C.C. § 32-03-23(2) to establish the value of the property; if the owner elects a return of the converted property, the present value of that property must be considered in mitigation of damages established under subsection 1 or 2 of N.D.C.C. § 32-03-23, and the owner is also entitled to damages under N.D.C.C. § 32-03-23(3), which include a fair compensation for the time and money properly expended in pursuit of the property. Buri v. Ramsey, 2005 ND 65, 693 N.W.2d 619, 2005 N.D. LEXIS 71 (N.D. 2005).
Attorneys’ Fees.
The phrase “time and money properly expended in pursuit of the property” is not an express authorization for attorneys’ fees. Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).
Trust beneficiary who succeeded on a claim that a condominium was purchased with funds converted from the trust was entitled under N.D.C.C. § 32-03-23 to recover attorney’s fees and costs incurred in the pursuit of the converted property that had a demonstrable purpose independent of the litigation. Anderson v. Sullivan, 2007 U.S. Dist. LEXIS 58037 (D.N.D. Aug. 7, 2007).
Certificates of Deposit.
In an action for the conversion of certificates of deposit, protest for nonpayment prior to conversion was evidence of reduced value of the certificates. First Nat'l Bank v. Dickson, 40 N.W. 351, 5 Dakota 286, 1888 Dakota LEXIS 30 (Dakota 1888).
Conversion of Parts.
Where, pursuant to the terms of its dealership agreement, the sellers credited the dealers from whom parts were repossessed the current cost to dealers of each part returned, plus a five percent handling charge, the current price paid by dealers was relevant evidence of wholesale value. However, where the dealership agreement clearly provided that the five percent was for packaging the parts for return, not for freight expenses, and no other evidence suggested that freight expenses would equal five percent of the wholesale price, the trial court erred in including the five percent handling charge as part of the wholesale value of the parts in determining damages for conversion of those parts repurchased under the dealership agreement. National Bank v. International Harvester Co., 421 N.W.2d 799, 1988 N.D. LEXIS 38 (N.D. 1988).
Diligence in Commencing Action.
An unexplained delay of eleven months in commencing an action is not a prosecution with reasonable diligence, and the highest market value is not recoverable. First Nat'l Bank v. Minneapolis & N. Elevator Co., 8 N.D. 430, 79 N.W. 874, 1899 N.D. LEXIS 29 (N.D. 1899).
The question of reasonable diligence in commencing an action where the facts as to diligence are not in dispute is one of law. First Nat'l Bank v. Red River Valley Nat'l Bank, 9 N.D. 319, 83 N.W. 221, 1900 N.D. LEXIS 235 (N.D. 1900).
Where the time elapsing between the date of conversion and the time of making the demand and bringing the action was approximately five months, it could not be said that the plaintiff was not diligent in prosecuting her action. Auth v. Kuroki Elevator Co., 40 N.D. 533, 169 N.W. 80, 1918 N.D. LEXIS 99 (N.D. 1918).
Executory Contract for Sale of Land.
In action for conversion of executory contract for sale of land, the measure of damages is the amount which will compensate the party injured for all detriment proximately caused thereby. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).
Exemplary Damages.
Exemplary damages may be awarded for conversion when the conduct of the wrongdoer has been oppressive, malicious, or fraudulent. Lamoreaux v. Randall, 53 N.D. 697, 208 N.W. 104, 1926 N.D. LEXIS 28 (N.D. 1926).
Grain.
Refusal of elevator to deliver wheat to the plaintiff upon her proper demand therefor was prejudicial and wrongful, and operated as a conversion of the wheat, and would therefore entitle the plaintiff to recover the value of the grain on the date of such demand and refusal with interest. Towne v. St. Anthony & Dakota Elevator Co., 8 N.D. 200, 77 N.W. 608, 1898 N.D. LEXIS 38 (N.D. 1898).
In an action for conversion of grain, the plaintiff must show the value of the grain as of the date of conversion. Citizens Nat'l Bank v. Osborne-McMillan Elevator Co., 21 N.D. 335, 131 N.W. 266, 1911 N.D. LEXIS 115 (N.D. 1911).
In an action to recover value of grain raised by plaintiff under a cropper’s contract, the measure of damages was the highest market value of the grain between the date of the conversion and the verdict. Collard v. Fried, 41 N.D. 242, 170 N.W. 525, 1918 N.D. LEXIS 149 (N.D. 1918); Littler v. Halla, 46 N.D. 180, 180 N.W. 717, 1920 N.D. LEXIS 69 (N.D. 1920); Fargo Loan Agency v. Larson, 53 N.D. 621, 207 N.W. 1003, 1926 N.D. LEXIS 23 (N.D. 1926).
In an action to recover the value of grain alleged to have been converted by defendant, and upon which the plaintiff had a chattel mortgage, judgment was properly based upon the market value established; but the allowance of costs and expenses of the foreclosure sale was erroneous where mortgagee at no time had possession of the grain or the storage tickets representing it. Sand v. St. Anthony & D. Elevator Co., 49 N.D. 502, 191 N.W. 955, 1922 N.D. LEXIS 82 (N.D. 1922).
In an action for damages on account of the conversion of grain covered by a chattel mortgage owned by plaintiff, where defendant denied lien, the conversion dated from the time of the purchase of the grain contrary to the terms of the agreement, and it was sufficient to prove the value of the grain at that time as the measure of damages was that value to the extent of plaintiff’s lien with interest from such date. Rolette State Bank v. Minnekota Elevator Co., 50 N.D. 141, 195 N.W. 6, 1923 N.D. LEXIS 82 (N.D. 1923).
The owner of grain stored in a public warehouse may recover the value of the grain at the time and place of conversion less storage charges, plus freight charges from local market to terminal market. Huether v. McCaull-Dinsmore Co., 52 N.D. 721, 204 N.W. 614, 1925 N.D. LEXIS 137 (N.D. 1925), overruled in part, Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).
Where a bank prosecuted with reasonable diligence its action for conversion of stored grain, it was entitled to recover the highest market price between the time of the conversion and the verdict. First State Bank v. Osborne-McMillan Elevator Co., 53 N.D. 551, 207 N.W. 37, 1926 N.D. LEXIS 4 (N.D. 1926).
Conversion by a public warehouseman selling stored grain without substitution takes place as of the date of shipment and sale. State ex rel. Hermann v. Farmers' Elevator Co., 59 N.D. 679, 231 N.W. 725, 1930 N.D. LEXIS 185 (N.D. 1930).
A conversion of wheat occurs when the wheat is taken and sold by a third party. Nathan v. Sax Motor Co., 64 N.D. 773, 256 N.W. 228, 1934 N.D. LEXIS 266 (N.D. 1934).
Refusal to deliver grain stored in an elevator on the ground that the grain had been foreclosed on and sold for storage constituted conversion. Kvame v. Farmers Coop. Elevator Co., 66 N.D. 54, 262 N.W. 242, 1935 N.D. LEXIS 171 (N.D. 1935).
In action for conversion of wheat stolen from plaintiff and sold and delivered by the thieves to defendant elevator company, whose manager purchased the grain without knowing that it was stolen, damages were recoverable for value of the wheat at the date of sale by the thieves to the elevator company. Hovland v. Farmers Union Elevator Co., 67 N.D. 71, 269 N.W. 842, 1936 N.D. LEXIS 153 (N.D. 1936).
The district court abused its discretion in excluding the defendant’s evidence relating to the commingling of corn delivered to its elevator as this evidence was relevant to the issue of damages, in a conversion action by the holder of a security interest. Dakota Bank & Trust Co. v. Brakke, 404 N.W.2d 438, 1987 N.D. LEXIS 297 (N.D. 1987).
Where a land purchaser denied access to the owner of grain bins on the purchaser’s land, both the monetary value of grain bins and possession of the bins were not authorized under N.D.C.C. § 32-03-23, which provided alternative bases for valuing converted property; the owner of the grain bins had to elect a remedy and once possession was elected, the value of the returned property had to be applied in mitigation of damages. Buri v. Ramsey, 2005 ND 65, 693 N.W.2d 619, 2005 N.D. LEXIS 71 (N.D. 2005).
Illegal Levy.
The measure of damages for an illegal levy is the value of the property at the time, and fair compensation for the time and money expended in its pursuit. Keith v. Haggart, 33 N.W. 465, 4 Dakota 438, 1887 Dakota LEXIS 13 (Dakota 1887).
Manufacturer who had made a wrongful levy and sale of dealer’s inventory was answerable in damages for the value of the property as determined by any one of the three methods of this section. John Deere Co. v. Nygard Equip., 225 N.W.2d 80, 1974 N.D. LEXIS 152 (N.D. 1974).
Interest on Damage Award Mandatory.
District court erred by instructing the jury it could elect not to include interest in a credit corporation’s conversion award because, the corporation elected to receive damages under N.D.C.C. § 32-03-23(1) and should have been awarded interest in addition to the value of the tractor at the time of the conversion as the award of interest was mandatory. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).
Lien or Other Special Interest.
Where a second mortgagee sued sheriff to recover for conversion of mortgaged chattels, the first mortgagee having recovered what was due him on account of the conversion, the recovery of the second mortgagee was limited to the difference between the value of the chattels and the prior recovery where value was less than amount of the two mortgages. Straw v. Jenks, 43 N.W. 941, 6 Dakota 414, 1889 Dakota LEXIS 36 (Dakota 1889).
Where a party who has a lien on or other special interest in property wrongfully converts it, he is liable for the value of the property, but nevertheless, upon principles of equity and to avoid circuity of action, is entitled to recoup the value of the special property and immediately mitigate the damage by limiting the plaintiff’s recovery to an amount which will compensate him for the actual loss resulting from the conversion. Lovejoy v. Merchants' State Bank, 5 N.D. 623, 67 N.W. 956, 1896 N.D. LEXIS 56 (N.D. 1896).
Money Expended in Pursuit.
In a case in which the landowner converted the tenant’s property as it exercised dominion and control over the property, the district court did not err in awarding the tenant $17,000 in damages to compensate it for hiring an investigative service to assist in recovering its wrongfully detained property. Skaw ND Precast, LLC v. Oil Capital Ready Mix, LLC, 2019 ND 296, 936 N.W.2d 65, 2019 N.D. LEXIS 287 (N.D. 2019).
Sale of Corporate Stock.
The wrongful sale of corporate stock in which another had an interest rendered the seller liable for the conversion of that interest. Leach v. Kelsch, 106 N.W.2d 358, 1960 N.D. LEXIS 93 (N.D. 1960).
Special Damages.
Special damages upon conversion of property are allowed only when properly incurred in pursuit of the property. Aronson v. Oppegard, 16 N.D. 595, 114 N.W. 377, 1907 N.D. LEXIS 82 (N.D. 1907).
Where a party places a fence on the property of another who then tears it down and refuses to return the material, an action for conversion may not properly include the cost of the labor of building the fence. Frank v. Schaff, 123 N.W.2d 827, 1963 N.D. LEXIS 114 (N.D. 1963).
Removal jurisdiction was lacking and remand under 28 U.S.C.S. § 1447(c) was appropriate because defendant satellite television provider failed to present sufficient evidence to show that a fact finder could legally conclude that the damages in plaintiff consumer’s action were greater than the $75,000 amount-in-controversy requirement necessary to support diversity jurisdiction under 28 U.S.C.S. § 1332 as the maximum recoverable damages under North Dakota law for the consumer’s claims of conversion and consumer fraud would be in the range of $1,000 plus reasonable costs and attorney’s fees under N.D.C.C. § 32-03-23 and N.D.C.C. § 51-15-09. Laducer v. Dish Network Serv., L.L.C., 691 F. Supp. 2d 1042, 2010 U.S. Dist. LEXIS 27560 (D.N.D. 2010).
Statutory Rule.
The rule of damages for conversion of personal property is the highest market value thereof as prescribed by the statute. Thompson v. Schaetzel, 42 N.W. 765, 6 Dakota 284, 1889 Dakota LEXIS 18 (Dakota 1889); Pickert v. Rugg, 1 N.D. 230, 46 N.W. 446, 1890 N.D. LEXIS 28 (N.D. 1890).
Stock of Goods.
The measure of damages for the conversion of a stock of goods is the amount for which the stock could be sold in bulk or in convenient lots by a willing seller to a willing buyer. Mevorah v. Goodman, 60 N.W.2d 581, 1953 N.D. LEXIS 103 (N.D. 1953).
The appropriate measure of damages for conversion of a stock of goods is the wholesale price plus freight costs. National Bank v. International Harvester Co., 421 N.W.2d 799, 1988 N.D. LEXIS 38 (N.D. 1988).
Time Expended in Pursuit.
The clause “time spent in pursuit of the property” is common to the Dakota and California enactments and derives from the Field Civil Code. Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).
Verdict.
The word “verdict” in the statute providing that the measure of damages for conversion is the highest market value of the property at any time between the conversion and the verdict does not mean merely the decision of the jury, but also includes findings of a judge trying a case without a jury. KVAME v. FARMERS COOP. ELEVATOR CO., 68 N.D. 439, 281 N.W. 52, 1938 N.D. LEXIS 131 (N.D. 1938).
Collateral References.
Trover and Conversion 41-62.
18 Am. Jur. 2d, Conversion, §§ 116 et seq.
89 C.J.S. Trover and Conversion, §§ 115-144.
Market value: measure of damages for conversion or loss of, or damage to, personal property not having a market value, 12 A.L.R.2d 902.
Measure of damages for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.
Conditional seller’s conversion of repossessed property, buyer’s damages for, 49 A.L.R.2d 15.
Punitive or exemplary damages for conversion of personalty by one other than chattel mortgagee or conditional seller, 54 A.L.R.2d 1361.
Timber, 69 A.L.R.2d 1335.
Commercial paper, measure of damages for conversion or loss of, 85 A.L.R.2d 1349.
Earth, sand, or gravel, measure of damages for wrongful removal, 1 A.L.R.3d 801.
Corporate stock or certificate, measure of damages for conversion of, 31 A.L.R.3d 1286.
Wearing apparel: valuation of wearing apparel or household goods kept by owner for personal use in action for loss, conversion, or injury to, such property, 34 A.L.R.3d 816.
Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.
Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.
Recognition of action for damages for wrongful foreclosure — Types of actions, 82 A.L.R.6th 43.
32-03-24. Presumption of damages cannot be repelled.
The presumption declared by section 32-03-23 cannot be repelled in favor of one whose possession was wrongful from the beginning by that person’s subsequent application of the property to the benefit of the owner without the owner’s consent.
Source:
Civ. C. 1877, § 1971; R.C. 1895, § 5001; R.C. 1899, § 5001; R.C. 1905, § 6586; C.L. 1913, § 7169; R.C. 1943, § 32-0324.
Derivation:
Cal. Civ. C., 3337.
32-03-25. Damages recoverable by lienholder.
One having a mere lien on personal property cannot recover greater damages for its conversion from one having a superior right thereto after the lien is discharged than the amount secured by the lien and the compensation allowed by section 32-03-23 for loss of time and expenses.
Source:
Civ. C. 1877, § 1972; R.C. 1895, § 5002; R.C. 1899, § 5002; R.C. 1905, § 6587; C.L. 1913, § 7170; R.C. 1943, § 32-0325.
Derivation:
Cal. Civ. C., 3338.
Notes to Decisions
Special Interest in Property.
The damages prescribed by the statute may be recovered by one having a special interest in the property. Second Nat'l Bank v. First Nat'l Bank, 8 N.D. 50, 76 N.W. 504, 1898 N.D. LEXIS 6 (N.D. 1898).
32-03-26. Damages for seduction. [Repealed]
Repealed by S.L. 1997, ch. 51, § 40.
32-03-27. Damages for tenant’s failure to surrender premises.
For the failure of a tenant to give up the premises held by the tenant, when the tenant has given notice of intention to do so, the measure of damages is double the rent which the tenant otherwise ought to pay.
Source:
Civ. C. 1877, § 1975; R.C. 1895, § 5005; R.C. 1899, § 5005; R.C. 1905, § 6590; C.L. 1913, § 7173; R.C. 1943, § 32-0327.
Derivation:
Cal. Civ. C., 3344.
Collateral References.
Landlord and Tenant 49(3), 144, 286.
49 Am. Jur. 2d, Landlord and Tenant, §§ 207 et seq.
28A C.J.S. Ejectment § 232; 52 C.J.S. Landlord and Tenant, §§ 495-498, 500-502; 52A C.J.S. Landlord and Tenant, §§ 12-714; 52B C.J.S. Landlord and Tenant, § 1359.
Failure to surrender possession of rented premises, 32 A.L.R.2d 582, 611.
What constitutes tenant’s holding over of leased premises, 13 A.L.R.5th 169.
Landlord’s permitting third party to occupy premises rent-free as acceptance of tenant’s surrender of premises, 18 A.L.R.5th 437.
32-03-28. Damages for tenant’s willful holding over.
For willfully holding over real property by a tenant, after the end of the term and after notice of intention to evict has been duly given and demand of possession made, the measure of damages is double the yearly value of the property for the time of withholding, in addition to compensation for the detriment occasioned thereby.
Source:
Civ. C. 1877, § 1976; R.C. 1895, § 5006; R.C. 1899, § 5006; R.C. 1905, § 6591; C.L. 1913, § 7174; R.C. 1943, § 32-0328; S.L. 1983, ch. 352, § 14.
Derivation:
Cal. Civ. C., 3345.
Collateral References.
What constitutes tenant’s holding over of leased premises, 13 A.L.R.5th 169.
Notes to Decisions
Hold Over Not Willful.
Evidence supported the district court's finding that a lessee did not willfully hold over because the correspondence exchanged between the lessor and the lessee created confusion as to what conditions the lessee was required to fulfil in exchange for a one-month extension; the lessee tendered two checks, believing it paid two months' rent, and the lessor applied the checks to the rent. Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc., 2016 ND 102, 879 N.W.2d 423, 2016 N.D. LEXIS 98 (N.D. 2016).
Willful Holdover.
Tenant willfully holds over if the holding over is done so intentionally and not inadvertently. Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc., 2016 ND 102, 879 N.W.2d 423, 2016 N.D. LEXIS 98 (N.D. 2016).
32-03-29. Damages for forcible exclusion from realty.
For forcibly ejecting or excluding a person from the possession of real property, the measure of damages is three times such a sum as would compensate for the detriment caused to the person by the act complained of.
Source:
Civ. C. 1877, § 1977; R.C. 1895, § 5007; R.C. 1899, § 5007; R.C. 1905, § 6592; C.L. 1913, § 7175; R.C. 1943, § 32-0329.
Notes to Decisions
Ejectment.
In a partnership dispute, a reviewing court did not have to address a trial court’s interpretation of agricultural land in N.D.C.C. § 47-16-02 because, even assuming there was a possessory interest in a bin site, there was evidence to support the finding that a partner was not ejected from the bin site. The testimony showed that a truck was parked across a road to prevent the removal of equipment, but not to prevent the use of the bins. Knudson v. Kyllo, 2012 ND 155, 819 N.W.2d 511, 2012 N.D. LEXIS 155 (N.D. 2012).
Forcible Entry.
To recover treble damages for a forcible ejectment from real property, the entry must have been forcible, but it is sufficient if present and threatened, and is justly to be feared, and it is not necessary that the force shall be actually applied. Wegner v. Lubenow, 12 N.D. 95, 95 N.W. 442, 1903 N.D. LEXIS 16 (N.D. 1903).
To authorize a recovery of treble damages under N.D.C.C. § 32-03-29 for a forcible ejectment from real property, it was necessary that the entry be forcible, but it was not necessary that the force be actually applied; it was enough if it was present and threatened, and was justly feared. Livinggood v. Balsdon, 2006 ND 11, 709 N.W.2d 723, 2006 N.D. LEXIS 17 (N.D. 2006).
Trial court did not err in concluding that a landlord forcibly ejected a tenant through overt acts where the landlord had twice driven in front of the tenant’s tractor, told him his farm lease was invalid, and threatened to call law enforcement; on both occasions, the tenant or his son stopped working and left the property. The tenant was properly awarded treble damages. Livinggood v. Balsdon, 2006 ND 215, 722 N.W.2d 716, 2006 N.D. LEXIS 217 (N.D. 2006).
Occupancy of House by Employee.
The rule that the occupancy of a house by an employee is incidental to the operation of a farm and ceases with the service on the farm is not abrogated by this section. Davis v. Long, 45 N.D. 581, 178 N.W. 936, 1920 N.D. LEXIS 164 (N.D. 1920).
Collateral References.
Ejectment 132; Forcible Entry and Detainer 30; Landlord and Tenant 132(3), 180(4, 5), 278, 292, 318(3).
25 Am. Jur. 2d, Ejectment, §§ 50-54; 49 Am. Jur. 2d, Landlord and Tenant, §§ 444-446.
28A C.J.S. Ejectment, § 232; 36A C.J.S. Forcible Entry and Detainer, §§ 75-77; 52 C.J.S. Landlord and Tenant, §§ 723-728; 52A C.J.S. Landlord and Tenant, §§ 976-981; 52B C.J.S. Landlord and Tenant, §§ 1328, 1398.
Remedy of tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192, 1210.
Physical injury occasioned by wrongful eviction, recovery by tenant of damages for, 17 A.L.R.2d 936.
Possession: measure of damages for lessor’s breach of covenant to put lessee into possession, 88 A.L.R.2d 1024, 1032.
Law Reviews.
North Dakota Supreme Court Review (Livinggood v. Balsdon), 83 N.D. L. Rev. 1085 (2007).
32-03-30. Damages for wrongful injuries to timber.
For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such a sum as would compensate for the actual detriment, except when the trespass was casual and involuntary or committed under the belief that the land belonged to the trespasser, or when the wood was taken by the authority of highway officers for the purposes of a highway. In such a case the damages are a sum equal to the actual detriment.
Source:
Civ. C. 1877, § 1978; R.C. 1895, § 5008; R.C. 1899, § 5008; R.C. 1905, § 6593; C.L. 1913, § 7176; R.C. 1943, § 32-0330.
Derivation:
Cal. Civ. C., 3346.
Collateral References.
Trespass 52.
52 Am. Jur. 2d, Logs and Timber, §§ 104 et seq.
87 C.J.S. Trespass, §§ 154, 155.
Venue of action for the cutting, destruction, or damage of standing timber or trees, 65 A.L.R.2d 1268.
Measure of damages for destruction of or injury to trees and shrubbery, 69 A.L.R.2d 1335.
Measure of damages for destruction of or injury to fruit, nut, or other productive trees, 90 A.L.R.3d 800.
Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.
Notes to Decisions
Jury Instructions.
District court erred in excluding from the jury instructions that portion of the statute at issue which would have informed the jury that treble damages would be awarded except if a neighbor’s trespass was committed under the belief the land belonged to him because the exclusion required the jury to speculate why the factual finding was required and it could not be concluded that insuring the jury’s ignorance did not mislead or confuse the jury. Haider v. Moen, 2018 ND 174, 914 N.W.2d 520, 2018 N.D. LEXIS 164 (N.D. 2018).
32-03-31. What value of property to seller deemed to be.
In estimating damages, the value of property to a seller thereof is deemed to be the price which the seller could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer and at such time after the breach of the contract as would have sufficed with reasonable diligence for the seller to effect a resale.
Source:
Civ. C. 1877, § 1979; R.C. 1895, § 5009; R.C. 1899, § 5009; R.C. 1905, § 6594; C.L. 1913, § 7177; R.C. 1943, § 32-0331.
Derivation:
Cal. Civ. C., 3353.
Notes to Decisions
Application of Statute.
This statute prescribes the rule to be followed unless the vendor proceeds to enforce a lien under N.D.C.C. § 35-20-05. Stanford v. McGill, 6 N.D. 536, 72 N.W. 938, 1897 N.D. LEXIS 33 (N.D. 1897), overruled, Hart-Parr Co. v. Finley, 31 N.D. 130, 153 N.W. 137, 1915 N.D. LEXIS 159 (N.D. 1915); Minneapolis Threshing Mach. Co. v. McDonald, 10 N.D. 408, 87 N.W. 993, 1901 N.D. LEXIS 52 (N.D. 1901).
Collateral References.
Measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.
32-03-32. What value of property to buyer or owner deemed to be.
In estimating damages, except as provided by sections 32-03-33 and 32-03-34, the value of property to a buyer or owner thereof deprived of its possession is deemed to be the price at which the buyer or owner might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into such person’s possession, and at such time after the breach of duty upon which that person’s right to damages is founded as would suffice with reasonable diligence for that person to make such a purchase.
Source:
Civ. C. 1877, § 1980; R.C. 1895, § 5010; R.C. 1899, § 5010; R.C. 1905, § 6595; C.L. 1913, § 7178; R.C. 1943, § 32-0332.
Derivation:
Cal. Civ. C., 3354.
Notes to Decisions
- Application of Statute.
- Breach of Warranty.
- Common-Law Rule.
- Failure to Deliver Potatoes.
- Purchaser’s Measure of Damages.
- Refusal to Deliver Repairs.
Application of Statute.
The section does not apply to property which has no market value. Patterson v. Plummer, 10 N.D. 95, 86 N.W. 111 (1901), distinguished, McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601 (1917) and Elliott Sch. Dist. v. Gorder, 55 N.D. 823, 215 N.W. 281, 1927 N.D. LEXIS 162 (N.D. 1927).
Breach of Warranty.
The statute is not applicable to a case where delivery is made and damages result from a breach of warranty of fitness. Needham v. H. S. Halverson & Co., 22 N.D. 594, 135 N.W. 203, 1912 N.D. LEXIS 59 (N.D. 1912).
Common-Law Rule.
The statute embodies the common-law rule of full compensation without punishment. Pickert v. Rugg, 1 N.D. 230, 46 N.W. 446, 1890 N.D. LEXIS 28 (N.D. 1890).
Failure to Deliver Potatoes.
Where defendant in writing agreed to sell plaintiff a carload of potatoes at one dollar and ten cents a bushel f.o.b. Winnipeg, guaranteeing safe delivery at Grand Forks, the measure of damages for defendant’s failure to deliver was the value of the potatoes at Grand Forks over the amount which would have been due if the defendant had fulfilled the contract. O. J. Barnes Co. v. Sheggerud, 43 N.D. 279, 173 N.W. 950, 1919 N.D. LEXIS 13 (N.D. 1919).
Purchaser’s Measure of Damages.
Purchaser of land induced through fraud and deceit is limited to the difference between value with which he parted and the actual value of the land as his measure of damages. Nupen v. Pearce, 235 F. 497, 1916 U.S. App. LEXIS 2203 (8th Cir. N.D. 1916).
Refusal to Deliver Repairs.
A counterclaim for damages for refusal to deliver certain repairs for machinery ordered by the defendant from the plaintiff, where the order was accepted or agreed to be filled, did not state facts sufficient to entitle the defendant to substantial damages. Scully Steel & Iron Co. v. Hann, 18 N.D. 528, 123 N.W. 275, 1909 N.D. LEXIS 53 (N.D. 1909).
Collateral References.
Measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.
Necessity that buyer, relying on market value as measure of damages for seller’s breach of sale contract, show that goods in question were available for market at price shown, 20 A.L.R.2d 819.
32-03-33. When peculiar value to person deemed value.
When certain property has a peculiar value to a person recovering damages for deprivation thereof or injury thereto, that value may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof or against a willful wrongdoer.
Source:
Civ. C. 1877, § 1981; R.C. 1895, § 5011; R.C. 1899, § 5011; R.C. 1905, § 6596; C.L. 1913, § 7179; R.C. 1943, § 32-0333.
Derivation:
Cal. Civ. C., 3355.
32-03-34. Value of title papers.
For the purpose of estimating damages, the value of an instrument in writing is presumed to be equal to that of the property to which it entitles its owner.
Source:
Civ. C. 1877, § 1982; R.C. 1895, § 5012; R.C. 1899, § 5012; R.C. 1905, § 6597; C.L. 1913, § 7180; R.C. 1943, § 32-0334.
Derivation:
Cal. Civ. C., 3356.
Notes to Decisions
Application of Statute.
This section does not apply to an executory contract for the sale of land. McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601, 1917 N.D. LEXIS 163 (N.D. 1917).
Chose in Action.
A chose in action is worth what appears to be due upon it and, unless the presumption is rebutted by legal evidence, it is conclusive. Anderson v. First Nat'l Bank, 6 N.D. 497, 72 N.W. 916, 1897 N.D. LEXIS 28 (N.D. 1897), aff'd, 172 U.S. 573, 19 S. Ct. 284, 43 L. Ed. 558, 1899 U.S. LEXIS 1397 (U.S. 1899).
Federal Bonds.
Federal bonds are presumed to be worth par until the contrary is shown. Dakota Nat'l Bank v. Brodie, 46 N.D. 247, 176 N.W. 738, 1920 N.D. LEXIS 1 (N.D. 1920).
Note and Mortgage.
The legal presumption is that note and mortgage were worth the amount of principal and interest indicated on their face at the time of conversion, and that amount with interest to the trial is prima facie the measure of damages. Holt v. Van Eps, 46 N.W. 689, 1 Dakota 206, 1875 Dakota LEXIS 13 (Dakota 1875).
Stock Certificate.
To the extent that this section applies to a certificate of stock in a national bank, the presumptive value of the stock is its par or nominal value. Patterson v. Plummer, 10 N.D. 95, 86 N.W. 111 (1901), distinguished, McKindley v. Citizens State Bank, 36 N.D. 451, 161 N.W. 601 (1917) and Elliott Sch. Dist. v. Gorder, 55 N.D. 823, 215 N.W. 281, 1927 N.D. LEXIS 162 (N.D. 1927).
32-03-35. Damages prescribed by this chapter exclude exemplary damages.
The damages prescribed by this chapter are exclusive of exemplary damages and interest except when those are mentioned expressly.
Source:
Civ. C. 1877, § 1983; R.C. 1895, § 5013; R.C. 1899, § 5013; R.C. 1905, § 6598; C.L. 1913, § 7181; R.C. 1943, § 32-0335.
Derivation:
Cal. Civ. C., 3357.
Collateral References.
Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.
Exemplary or punitive damages for pharmacist’s wrongful conduct in preparing or dispensing medical prescription — Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072), 109 A.L.R.5th 397.
32-03-36. Recovery not more than gained by performance.
Notwithstanding the provisions of this chapter, no person can recover a greater amount in damages for the breach of an obligation than the person could have gained by the full performance thereof on both sides, except in the cases wherein exemplary damages or penal damages are authorized, and in the case specified in section 36-21-13.
Source:
Civ. C. 1877, § 1984; R.C. 1895, § 5014; R.C. 1899, § 5014; R.C. 1905, § 6599; C.L. 1913, § 7182; R.C. 1943, § 32-0336; S.L. 1999, ch. 50, § 51.
Derivation:
Cal. Civ. C., 3358.
Notes to Decisions
- Anticipated Profits.
- Benefit of Bargain.
- Breach of Sales Contract.
- Buyer’s Default.
- Construction Contract.
- Contract for Service.
- Fraudulent Misrepresentations.
- Limit on Recovery.
- Lost Profits.
- Modified Net Profit Approach.
- Repair.
- Unascertainable Damages.
Anticipated Profits.
Where a plaintiff offers evidence estimating anticipated profits with reasonable certainty, they may be awarded. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Benefit of Bargain.
The law incorporates the notion that contract damages should give the nonbreaching party the benefit of the bargain by awarding a sum of money that will put that person in as good a position as if the contract had been performed. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Breach of Sales Contract.
Where, in an action for breach of a lease-purchase contract for oil well equipment, the court allowed the seller to retain the sums already paid by the buyer, awarded damages for reasonable value of use based upon the parties’ monthly payment amount, and allowed the seller to keep the equipment without accounting for the proceeds, its measure of damages may arguably have been appropriate if the contract had been a true lease, but was wholly inappropriate for a breach of a sales contract. Lindberg v. Williston Indus. Supply Corp., 411 N.W.2d 368, 1987 N.D. LEXIS 382 (N.D. 1987).
Buyer’s Default.
A seller cannot, upon the buyer’s default, retake the property without accounting for the proceeds and also recover the purchase price from the defaulting buyer. This would clearly constitute a double recovery. Lindberg v. Williston Indus. Supply Corp., 411 N.W.2d 368, 1987 N.D. LEXIS 382 (N.D. 1987).
Construction Contract.
Trial court’s award of damages to excavation company based on load count was not clearly erroneous where developer failed to perform an initial cross-sectioning of area to be excavated as required by the contract, thereby preventing a more accurate calculation. Wachter v. Gratech Co., 2000 ND 62, 608 N.W.2d 279, 2000 N.D. LEXIS 65 (N.D. 2000).
Contract for Service.
Where the contract is for service and the breach prevents the performance of that service, the value of the contract consists of two items: (1) The party’s reasonable expenditures toward performance, including costs paid, material wasted, and time and services spent on the contract, and (2) the anticipated profits. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Fraudulent Misrepresentations.
In an action to recover damages for false and fraudulent representations, the measure of the plaintiff’s recovery, in absence of a claim for special or exemplary damages, is the difference in value between what was received or parted with, as the case may be, and what would have been received or parted with had the representations been true. Beare v. Wright, 14 N.D. 26, 103 N.W. 632, 1905 N.D. LEXIS 36 (N.D. 1905).
Limit on Recovery.
For a breach of contract, the injured party is entitled to compensation for the loss suffered, but can recover no more than would have been gained by full performance. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Lost Profits.
A party is entitled to recover for the detriment caused by the defendant’s breach, including lost profits if they are reasonable and not speculative. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Modified Net Profit Approach.
The method used by the trial court to derive net profits (a “modified net profit” approach) was improper, because it did not restrict the expenses that were deductible from the contract price to those which would have been incurred but for the breach of the contract, i.e., those expenses plaintiff did not have to pay because the defendant kept him from doing the work. Leingang v. Mandan Weed Bd., 468 N.W.2d 397, 1991 N.D. LEXIS 64 (N.D. 1991).
Repair.
In an action by plaintiff seed processor against defendants, a contractor, an equipment supplier, and a performance bond surety, the surety and the contractor unsuccessfully argued that the special masters’ damage determination with regard to repair costs provided the processor with a more expensive and well-appointed facility than it contracted to receive; the costs prepared by the processor’s experts were an objective and reasonable statement of costs to remedy the deficiencies in the plant and attain completed performance at the guaranteed levels. AgGrow Oils, L.L.C. v. Nat'l Union Fire Ins. Co., 276 F. Supp. 2d 999, 2003 U.S. Dist. LEXIS 12076 (D.N.D. 2003), aff'd, 420 F.3d 751, 2005 U.S. App. LEXIS 18015 (8th Cir. N.D. 2005).
Unascertainable Damages.
The trial court did not err in awarding greater damages than would have been realized by full performance of the contract, where without a breach, the broker would have been entitled not only to its net sales commissions, but to other damages, extremely difficult or impracticable to ascertain, yet flowing from the breach, including loss of management fees, sales referrals, business contact with tenants, and goodwill. Coldwell Banker-First Realty v. Meide & Son, 422 N.W.2d 375, 1988 N.D. LEXIS 78 (N.D. 1988).
Collateral References.
Amount of appropriation as limitation on damages for breach of contract recoverable by one contracting with government agency, 40 A.L.R.4th 998.
Equipment leasing expense as element of construction contractor’s damages, 52 A.L.R.4th 712.
Recoverability of compensatory damages for mental anguish or emotional distress for breach of contract to lend money, 52 A.L.R.4th 826.
32-03-37. Damages must be reasonable.
Damages in all cases must be reasonable, and when an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages contrary to substantial justice, no more than reasonable damages can be recovered.
Source:
Civ. C. 1877, § 1985; R.C. 1895, § 5015; R.C. 1899, § 5015; R.C. 1905, § 6600; C.L. 1913, § 7183; R.C. 1943, § 32-0337.
Derivation:
Cal. Civ. C., 3359.
Collateral References.
Damages 127.
25A C.J.S. Damages, §§ 384-385.
Third-party tortfeasor’s right to have damages recovered by employee reduced by amount of employee’s workers’ compensation benefits, 43 A.L.R.4th 849.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in farming, ranching, or agricultural labor, 46 A.L.R.4th 220.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of homeworker, 47 A.L.R.4th 100.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.
Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest, 48 A.L.R.4th 165.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of retired persons, 48 A.L.R.4th 229.
Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.
Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.
Future disease or condition, or anxiety relating thereto, as element or recovery, 50 A.L.R.4th 13.
Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional white-collar, and nonmanual occupations, 50 A.L.R.4th 787.
Excessiveness or inadequacy of compensatory damages for malicious prosecution, 50 A.L.R.4th 843.
Equipment leasing expense as element of construction contractor’s damages, 52 A.L.R.4th 712.
32-03-38. Nominal damages.
When a breach of duty has caused no appreciable detriment to the party affected, the party may recover nominal damages.
Source:
Civ. C. 1877, § 1986; R.C. 1895, § 5016; R.C. 1899, § 5016; R.C. 1905, § 6601; C.L. 1913, § 7184; R.C. 1943, § 32-0338.
Derivation:
Cal. Civ. C., 3360.
Notes to Decisions
- Breach of Contract.
- Breach of Official Bond.
- Instructions.
- No Damage Suffered.
- Nominal Damages Reversed.
Breach of Contract.
A party is entitled to nominal damages for the breach of a contract though there is failure to prove actual damages. Raymond v. Edelbrock, 15 N.D. 231, 107 N.W. 194, 1906 N.D. LEXIS 34 (N.D. 1906).
Breach of Official Bond.
A complaint which alleges a breach of an official bond is good against demurrer, even though there is no express allegation of damages. Bowman County v. McIntyre, 52 N.D. 225, 202 N.W. 651, 1925 N.D. LEXIS 24 (N.D. 1925).
Instructions.
Refusal to give defendant’s requested instruction would have required jury to award nominal damages if it found that plaintiff carnally knew wife of defendant was not error since statute allows such damages but does not require that they be awarded. Wrangham v. Tebelius, 231 N.W.2d 753, 1975 N.D. LEXIS 178 (N.D. 1975).
No Damage Suffered.
The trial court’s finding that no damage ensued from the defendants’ “acts of deceit” or “attempts to defraud” required that the nominal damage award for those acts be reversed. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).
Nominal Damages Reversed.
The trial court’s award of nominal damages of $2500 each for four separate acts which was then trebled, was reversed, for at least two reasons. First, the damages were not nominal; nominal damages are limited to one dollar. More significantly, however, no nominal damage award was allowable, where three of the four acts of the defendants for which nominal damages were awarded, were based upon the trial court’s findings that these acts were either an attempt to defraud or were acts of deceit. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).
Collateral References.
Damages 8-14.
22 Am. Jur. 2d, Damages, §§ 8-23.
25 C.J.S. Damages, §§ 12-20.
Trespass: nominal damages as recoverable in action of trespass by tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192, 1210.
Privacy, invasion of right of, 14 A.L.R.2d 750, 57 A.L.R.3d 16.
Corporation: right to nominal damages only for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12.
Breach of contract, nominal damages for procuring, 26 A.L.R.2d 1227.
Tenant’s failure to surrender possession of rented premises, nominal damages in action for, 32 A.L.R.2d 582, 611.
Pollution of stream, recovery of nominal damages only for, 49 A.L.R.2d 253, 267.
Employer’s right to damages for breach of employment contract by employee’s terminating employment, 61 A.L.R.2d 1008, 1010.
Geophysical or seismograph exploration or survey, right to nominal damages for unauthorized, 67 A.L.R.2d 444, 457.
Wrongful death action, recovery of nominal damages in, 69 A.L.R.2d 628.
Vendor’s delay in conveying real property, nominal damages in action by vendee for, 74 A.L.R.2d 585.
Commercial paper, nominal damages for conversion or loss of, 85 A.L.R.2d 1349.
Lessor’s breach of covenant to put lessee into possession, nominal damages for, 88 A.L.R.2d 1024, 1032.
Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.
Sufficiency of showing of actual damages to support award of punitive damages — modern cases, 40 A.L.R.4th 11.
Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.
Measure and elements of damages recoverable for attorney’s negligence in preparing or conducting litigation — Twentieth Century cases, 90 A.L.R.4th 1033.
32-03-39. Parental responsibility for minor children — Recovery limitations.
Any municipal corporation, county, township, school district, or department of the state of North Dakota, or any person, partnership, corporation, limited liability company, association, or religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in a civil action in an amount not to exceed one thousand dollars in a court of competent jurisdiction from the parents of any minor, living with a parent, who shall maliciously or willfully destroy property, real, personal, or mixed, belonging to such municipal corporation, county, township, school district, or department of the state of North Dakota, or person, partnership, corporation, limited liability company, association, or religious organization.
Recovery shall be limited to actual damages in an amount not to exceed one thousand dollars, in addition to taxable court costs.
Source:
S.L. 1957, ch. 224, §§ 1, 2; R.C. 1943, 1957 Supp., § 32-0339; S.L. 1973, ch. 120, § 34; 1975, ch. 293, § 1; 1993, ch. 54, § 106.
Cross-References.
Liability of minor jointly and severally with parents up to statutory amount, sole liability for damages over that amount, see N.D.C.C. § 32-03-09.2.
Collateral References.
Parent and Child 13(1).
59 Am. Jur. 2d, Parent and Child, § 103.
67A C.J.S. Parent and Child, § 309.
Validity and construction of statutes making parents liable for torts committed by their minor children, 8 A.L.R.3d 612.
Parent’s liability for injury or damage intentionally inflicted by minor child, 54 A.L.R.3d 974.
Infant’s liability for medical, dental or hospital services, 53 A.L.R.4th 1249.
Law Reviews.
Counterclaims and Third-Party Practice under the North Dakota Rules, 34 N.D. L. Rev. 7 (1958).
“The Development and Current Status of Parental Liability for the Torts of Minors,” 76 N.D. L. Rev. 89 (2000).
32-03-40. Emergency treatment by firemen, policemen, or peace officers.
Any fireman, policeman, or peace officer who in good faith renders emergency care at the scene of an emergency in this state shall be expected to render only such emergency care as in such person’s judgment is at the time indicated and shall not be liable for any civil damages for acts or omissions done in the person’s good-faith judgment except for damages occasioned by wanton acts of misconduct or negligence in rendering such emergency care.
Source:
S.L. 1967, ch. 267, § 1.
Cross-References.
Emergency care at scene of accident, see N.D.C.C. § 39-08-04.1.
Collateral References.
Construction of “Good Samaritan” statute excusing from civil liability one rendering care in an emergency, 39 A.L.R.3d 222.
Liability for failure of police response to emergency call, 39 A.L.R.4th 691.
Law Reviews.
For Case Comment: Health – Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).
32-03-41. Immunity for mitigating hazardous materials discharge — Exceptions.
A person who assists or advises in mitigating or attempting to mitigate the effects of an actual or threatened discharge, leakage, seepage, or other release of materials or substances designated or defined as hazardous by any state or federal law or the rules and regulations of any state or federal entity, or in preventing, cleaning up, or disposing of or in attempting to prevent, clean up, or dispose of any such discharge, leakage, seepage, or other release is not subject to any civil liability or penalty. This section does not apply to damages caused by that person’s gross negligence or reckless, wanton, or intentional misconduct, nor does this section apply to any person whose act or omission caused the actual or threatened discharge, leakage, seepage, or other release and who would otherwise be liable therefor, or to any person who receives compensation other than reimbursement for out-of-pocket expenses for services in rendering such assistance or advice.
Source:
S.L. 1983, ch. 373, § 1.
Collateral References.
Validity of local regulation of hazardous waste, 67 A.L.R.4th 822.
State and local government control of pollution from underground storage tanks, 11 A.L.R.5th 388.
32-03-42. Limited liability for gratuitous health care provided amateur athletes.
Any person licensed to provide health care services in this state who in good faith voluntarily provides a health care service without compensation or the expectation of compensation for amateur athletes, or at an amateur athletic event, is not liable for any damages resulting from any act or omission in the rendering of that care, including the failure to arrange for further treatment or care. This section may not be construed to relieve the person of liability for injury or death of the person receiving the health care service proximately resulting from the intoxication, willful misconduct, or gross negligence of the person rendering the care.
Source:
S.L. 1985, ch. 371, § 1.
Law Reviews.
For Case Comment: Health – Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).
32-03-43. Wrongful life action prohibited — Definition.
No person may maintain a claim for relief or receive an award for damages on that person’s own behalf based on the claim that, but for the act or omission of another, that person would have been aborted. As used in this section, “abortion” means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead embryo or fetus.
Source:
S.L. 1985, ch. 372, §§ 1, 2.
Notes to Decisions
Construction.
Summary judgment was properly awarded to doctors in parents’ action claiming that, as a result of the doctors’ negligence in detecting the presence of an abnormality consistent with Down Syndrome, they were deprived of their right to terminate a pregnancy because the plain language of the statute precluded a child or others from bringing a wrongful life claim on the child’s behalf. B.D.H. v. Mickelson, 2010 ND 235, 792 N.W.2d 169, 2010 N.D. LEXIS 238 (N.D. 2010).
Collateral References.
Recoverability of compensatory damages for mental anguish or emotional distress for tortiously causing another’s birth, 74 A.L.R.4th 798.
32-03-44. Immunity of officers, directors, and trustees of nonprofit organizations.
Any person who serves as a director, officer, or trustee of a nonprofit organization that is, or would qualify as a nonprofit organization that is, described in paragraphs 3, 4, 5, 6, 7, 10, and 19 of section 501(c) of the Internal Revenue Code of 1954 as amended [26 U.S.C. 501(c)(3), (4), (5), (6), (7), (10), and (19)], is immune from civil liability for any act or omission resulting in damage or injury if at the time of the act or omission all of the following are met:
- The officer, director, or trustee was acting in good faith and in the scope of that person’s official duties as a director, officer, or trustee of the nonprofit organization.
- The act or omission did not constitute willful misconduct or gross negligence on the part of the officer, director, or trustee.
- The officer, director, or trustee did not receive or expect to receive reimbursement for or payment of expenses in excess of two thousand dollars per year for expenses actually incurred as a result of providing services as a director, officer, or trustee of the nonprofit organization and did not receive or expect to receive compensation or anything in lieu of compensation as payment for services provided as a director, officer, or trustee of the nonprofit organization.
Source:
S.L. 1987, ch. 401, § 1.
Notes to Decisions
Evidence.
In an action to collect unpaid overtime wages from a non-profit organization, unsupported conclusory allegations, inadmissible hearsay and innuendo offered by the former employee were insufficient to establish personal liability of the corporation’s officers. Strom-Sell v. Council for Concerned Citizens, Inc., 1999 ND 132, 597 N.W.2d 414, 1999 N.D. LEXIS 152 (N.D. 1999).
32-03-45. Immunity of volunteers providing services for nonprofit organizations.
Except as provided in section 32-03-46, any person who, on a volunteer basis, provides services or performs duties on behalf of a nonprofit organization is immune from civil liability for any act or omission resulting in damage or injury if at the time of the act or omission all of the following are met:
- The person who caused the damage or injury was acting in good faith and in the scope of that person’s duties as a volunteer for the nonprofit organization.
- The act or omission did not constitute willful misconduct or gross negligence.
This section does not grant immunity to any person causing damage as the result of the negligent operation of a motor vehicle.
Source:
S.L. 1987, ch. 402, § 1; 1997, ch. 283, § 1.
32-03-46. Immunity of volunteer athletic coaches and officials.
-
Any person who provides services or assistance free of charge, except for reimbursement of expenses, as an athletic coach, manager, or official for a sports team which is organized or performing pursuant to a nonprofit or similar charter is immune from civil liability for any act or omission resulting in damage or injury to a player or participant if at the time of the act or omission all the following are met:
- The person who caused the damage or injury was acting in good faith and in the scope of that person’s duties for the sports team.
- The act or omission did not constitute willful misconduct or gross negligence.
- The coach, manager, or official had participated in a safety orientation and training program established by the league or team with which the person is affiliated.
-
This section does not grant immunity to:
- Any person causing damage as the result of the negligent operation of a motor vehicle.
- Any person for any damage caused by that person permitting a sports competition or practice to be conducted without supervision.
- Any athletic coach, manager, or official providing service as a part of a public or private educational institution’s athletic program.
Source:
S.L. 1987, ch. 402, § 2; 1997, ch. 283, § 2.
32-03-47. Definitions — Voluntary engineering services — Immunity.
-
As used in this section:
- “Architect” means a person registered under chapter 43-03 as an architect.
- “Building inspection official” means any appointed or elected federal, state, or local official with overall executive responsibility to coordinate building inspection in the jurisdiction in which the emergency or event has occurred.
- “Law enforcement official” means any appointed or elected federal, state, or local official with overall executive responsibility to coordinate law enforcement in the jurisdiction in which the emergency or event has occurred.
- “Professional engineer” means a person licensed under chapter 43-19.1 as a professional engineer.
- “Public official” means any federal, state, or locally elected official with overall executive responsibility in the jurisdiction in which the emergency or event has occurred.
- “Public safety official” means any appointed or elected federal, state, or local official with overall executive responsibility to coordinate public safety in the jurisdiction in which the emergency or event has occurred.
- An architect or a professional engineer who voluntarily, without compensation, provides architectural or structural, electrical, mechanical, or other engineering services at the scene of a declared national, state, or local emergency caused by a major earthquake, hurricane, tornado, fire, explosion, collapse, or other similar disaster or catastrophic event at the request of a national, state, or local public official, law enforcement official, public safety official, or building inspection official acting in an official capacity, is not liable for any personal injury, wrongful death, property damage, or other loss caused by the architect’s or professional engineer’s acts, errors, or omissions in the performance of any engineering services for any structure, building, piping, or other engineered system, either publicly or privately owned.
- The immunity provided in this section applies only to a voluntary engineering service that occurs within ninety days of the emergency, disaster, or catastrophic event, unless extended by the governor under chapter 37-17.1.
- Nothing in this section provides immunity for wanton, willful, or intentional misconduct.
Source:
S.L. 1993, ch. 338, § 1.
32-03-48. Definitions. [Effective through August 31, 2022]
As used in sections 32-03-48 through 32-03-50, unless the context otherwise requires:
- “Critical incident” means any event encountered by emergency service personnel within the scope of their employment which causes them to experience unusually strong emotional reactions that have the potential to interfere with their ability to perform their jobs or that may interfere with their personal lives.
- “Critical incident stress debriefing” means the process of resolving the effects of critical incidents on emergency service personnel through a structured meeting with both psychological and educational components according to the model approved by the state department of health.
- “Critical incident stress management team” means those volunteers who are recognized by the state department of health as members of an organized group that provides critical incident stress debriefing services on behalf of the state.
- “Emergency service personnel” means individuals who provide emergency services to persons requiring medical aid, firefighting services, law enforcement assistance, or other emergency assistance. The term includes law enforcement officers, firefighters, rescue personnel, ambulance personnel, quick response personnel, emergency service dispatchers, nurses, physicians, and other emergency care providers.
- “Peer support personnel” means those members of a critical incident stress management team who are emergency service personnel and who have completed appropriate training approved by the state department of health.
Source:
S.L. 1995, ch. 326, § 1; 2017, ch. 97, § 25, effective August 1, 2017.
32-03-48. Definitions. [Effective September 1, 2022]
As used in sections 32-03-48 through 32-03-50, unless the context otherwise requires:
- “Critical incident” means any event encountered by emergency service personnel within the scope of their employment which causes them to experience unusually strong emotional reactions that have the potential to interfere with their ability to perform their jobs or that may interfere with their personal lives.
- “Critical incident stress debriefing” means the process of resolving the effects of critical incidents on emergency service personnel through a structured meeting with both psychological and educational components according to the model approved by the department of health and human services.
- “Critical incident stress management team” means those volunteers who are recognized by the department of health and human services as members of an organized group that provides critical incident stress debriefing services on behalf of the state.
- “Emergency service personnel” means individuals who provide emergency services to persons requiring medical aid, firefighting services, law enforcement assistance, or other emergency assistance. The term includes law enforcement officers, firefighters, rescue personnel, ambulance personnel, quick response personnel, emergency service dispatchers, nurses, physicians, and other emergency care providers.
- “Peer support personnel” means those members of a critical incident stress management team who are emergency service personnel and who have completed appropriate training approved by the department of health and human services.
Source:
S.L. 1995, ch. 326, § 1; 2017, ch. 97, § 25, effective August 1, 2017; 2021, ch. 352, § 341, effective September 1, 2022.
32-03-49. Immunity from liability.
Notwithstanding any other law, any member of a critical incident stress management team is immune from any civil liability for the member’s activities in connection with critical incident stress debriefing services unless, based upon the member’s level of training, the member’s activities constitute gross negligence.
Source:
S.L. 1995, ch. 326, § 2.
32-03-50. Confidentiality of critical incident stress management team proceedings and records.
Notwithstanding sections 44-04-18 and 44-04-19, all records and proceedings of a critical incident stress management team in connection with its critical incident stress debriefing activities are confidential. The records and proceedings are not subject to discovery or introduction into evidence in any action or proceeding involving the emergency service personnel in attendance at a debriefing and which arises out of the matters that are the subject of the debriefing. No person in attendance at a debriefing may be required to testify in any action or proceeding as to any evidence or other matters produced or presented during the debriefing. Information, documents, or records otherwise available from original sources are not immune from discovery because they were presented during a critical incident stress debriefing. Any person in attendance at a critical incident stress debriefing may testify as to matters within the person’s knowledge, but the person may not testify about the specific events that occurred at a debriefing.
Source:
S.L. 1995, ch. 326, § 3.
32-03-51. Limited liability of owner or operator of railroad.
An individual who is injured while boarding or attempting to board a moving locomotive or railroad car, without authority from the owner or operator of the railroad, or who having boarded a locomotive or railroad car without authority from the owner or operator of the railroad, is injured while riding or getting off the locomotive or railroad car, may not recover any damages from the owner or operator of the railroad for that injury unless the injury is proximately caused by an intentional act of the railroad owner or operator and the railroad owner or operator knew that serious injury was the probable result of the act, or that the owner or operator of the railroad acted with wanton and reckless disregard of the probable result of the act. This section does not exempt a railroad corporation from any liability created under chapter 49-16 or the federal Employer’s Liability Act [45 U.S.C. 51 et seq.] for injuries to its employees or agents.
Source:
S.L. 1997, ch. 284, § 1.
32-03-52. Damages for fraudulent use of social security number — Attorney’s fees.
- No person may buy or otherwise obtain or sell, offer for sale, take or give in exchange, pledge or give in pledge, or use any individual’s social security account number, or any derivative of the number, for the purpose of committing fraud or fraudulently using or assuming the individual’s identity.
- Any individual aggrieved by the act of any person in violation of subsection 1 may bring a claim for relief to recover any equitable relief as the court determines to be appropriate and the greater of the actual damages or liquidated damages of up to ten thousand dollars.
- In addition to any damages or other relief awarded under subsection 2, if the aggrieved individual prevails, the court may assess against the defendant reasonable attorney’s fees and any other litigation costs and expenses, including expert fees, reasonably incurred by the aggrieved individual.
- Any action brought under this section is in addition to any criminal prosecution that may be brought under any state or federal law.
Source:
S.L. 1999, ch. 299, § 1.
32-03-53. Damage or destruction of crops, livestock, or commodities — Damages.
-
A person is liable for damages as provided in subsection 2 if that person willfully and knowingly damages or destroys any crop, livestock, or commodity which is being produced, or has been produced for:
- Personal or commercial purposes; or
- Testing or research purposes as part of a product development program in conjunction with or in coordination with a private research facility, a university, or any federal, state, or local government entity.
- In awarding damages under subsection 1, a court shall consider the market value of the crop, livestock, or commodity before the damage or destruction and the production, research, testing, replacement, and development costs directly related to the crop, livestock, or the commodity. A person found by the court to have been damaged under this section may recover reasonable attorney’s fees, exemplary damages, and twice the market value of the crop, livestock, or commodity before the damage or destruction and twice the actual production, research, testing, replacement, and development costs. Damages to crops, livestock, or commodities under this section which are reasonably necessary under a written contract or recorded easement duly entered into by the crop, livestock, or commodity producer are not recoverable.
- This section does not preclude or limit any other right or remedy available under law or equity.
Source:
S.L. 2001, ch. 303, § 1.
32-03-54. Limited liability — Firearms.
- In this section, a firearm is defined as in section 62.1-01-01.
- A firearm manufacturer, distributor, or seller who lawfully manufactures, distributes, or sells a firearm is not liable to any person or to the estate, a successor, or survivor of any person for any injury suffered, including wrongful death and property damage, because of the use of a firearm by another.
- An association of persons who are licensed under section 923 of title 18 of the United States Code, or amendments thereto, is not liable to any person or to the estate, a successor, or survivor of any person for any injury suffered, including wrongful death and property damage, because of the use of a firearm sold or manufactured by any licensee who is a member of the association.
- This section does not apply to a claim for relief for deceit, breach of contract, express or implied warranty, or for injury resulting from failure of a firearm to operate in a normal or usual manner due to defects or negligence in design or manufacture. This section does not apply to a claim for relief arising from the unlawful sale or transfer of a firearm or an instance when the transferor knew or should have known that the recipient would engage in the unlawful sale or transfer of the firearm or would use or purposely allow the use of the firearm in an unlawful, negligent, or improper fashion. For the purposes of this subsection, the potential of a firearm to cause serious injury, damage, or death as a result of normal function does not constitute a defective condition of the product. A firearm may not be deemed defective on the basis of its potential to cause serious injury, damage, or death when discharged.
Source:
S.L. 2001, ch. 304, § 1.
32-03-55. Immunity for report of suspected exploitation of disabled or vulnerable elderly adult.
A financial institution or financial institution employee participating in good faith in the making of a report of suspected exploitation of a disabled adult or vulnerable elderly adult to a government agency or law enforcement agency, assisting in an investigation of suspected exploitation of a disabled adult or vulnerable elderly adult by a government agency or law enforcement agency, or furnishing information to a government agency or law enforcement agency about suspected exploitation of a disabled adult or vulnerable elderly adult is immune from any liability, civil or criminal, that might otherwise result from reporting a suspected case of exploitation of a disabled adult or vulnerable elderly adult. For purposes of any proceeding, civil or criminal, the good faith of a financial institution making a report of suspected exploitation of a disabled adult or vulnerable elderly adult to a government agency or law enforcement agency must be presumed.
Source:
S.L. 2001, ch. 98, § 2.
32-03-56. Immunity for theft of anhydrous ammonia.
The owner of anhydrous ammonia is immune from civil liability for any loss, damage, or injury from the theft by another or attempted theft by another of anhydrous ammonia from the tank, equipment, or storage facility in which it is contained. For purposes of this section, “owner” means:
- A person who lawfully owns anhydrous ammonia;
- A person who lawfully owns a container, equipment, or storage facility containing anhydrous ammonia;
- A person responsible for the installation or operation of an anhydrous ammonia container, equipment, or storage facility;
- A person who lawfully sells anhydrous ammonia;
- A person who lawfully purchases anhydrous ammonia for agricultural purposes; and
- A person who operates or uses anhydrous ammonia containers, equipment, or storage facilities when lawfully applying anhydrous ammonia for agricultural purposes.
Source:
S.L. 2003, ch. 191, § 2.
32-03-57. Liquefied petroleum gas dealers immunity from civil liability.
- Any person engaged in this state in the business of selling at retail, supplying, handling, or transporting liquefied petroleum gas is immune from civil liability if the direct cause of any loss, damage, or injury was caused by the alteration, modification, or repair of liquefied petroleum gas equipment or a liquefied petroleum gas appliance if the alteration, modification, or repair was done without the knowledge and consent of the liquefied petroleum gas seller, supplier, handler, or transporter or was completed by a person not certified to repair the equipment or appliance.
- This section applies only to fixed liquefied petroleum gas fuel systems. “Fixed liquefied petroleum gas fuel system” means an installation with a maximum operating pressure of one hundred twenty-five pounds per square inch [861.84 kilopascal] or less and includes the container assembly, pressure regulator, piping system, gas utilization equipment and components, and venting system in residential, commercial, or institutional installations.
Source:
S.L. 2011, ch. 244, § 1.
Effective Date.
This section became effective August 1, 2011.
Note.
Section 2 of chapter 244, S.L. 2011 provides: “ APPLICATION. This Act applies to alleged injuries, damages, or losses occurring on or after August 1, 2011.”
32-03-58. Distribution of intimate images without or against consent — Remedies.
An individual whose intimate image is distributed in violation of section 12.1-17-07.2 may maintain a private right of action against each person who has distributed that image in violation of section 12.1-17-07.2, without regard to whether the defendant has been charged with, found guilty of, or pleaded guilty to that offense. An individual whose intimate image is distributed in violation of section 12.1-17-07.2 is entitled to pursue all of the economic, noneconomic, and exemplary or punitive damages and other remedies available by law and to obtain a temporary restraining order or a preliminary or permanent injunction ordering the person to cease distribution of the intimate image.
History. S.L. 2015, ch. 106, § 2, effective August 1, 2015.
Effective Date.
This section became effective August 1, 2015.
CHAPTER 32-03.1 Good Samaritan Act
32-03.1-01. Definitions.
For the purposes of this chapter, the following terms shall have the designated meanings:
- “Aid or assistance necessary or helpful in the circumstances” means any actions which the aider reasonably believed were required to prevent death or serious permanent injury, disability or handicap, or reasonably believed would benefit the injured or ill person, depending upon the aider’s perception of the nature and severity of the injury or illness and the total emergency situation, and that the aider reasonably believed the aider could successfully undertake.
- “Appropriate person licensed or certified by this state or by any state or province to provide medical care or assistance” means any physician, nurse, emergency medical technician, or other medical or paramedical personnel whom the aider reasonably believes is such, based upon the representations of the person or that person’s actions in providing medical aid.
- “Employed expressly or actually” means either that the person’s formal duties include the provision of emergency medical aid, or that the person customarily provides such aid and is informally expected or relied upon to do so in the course of the person’s employment.
- “Gross negligence” means acts or omissions falling short of intentional misconduct which nevertheless show a failure to exercise even slight care or any conscious interest in the predictable consequences of the acts or omissions. For the purposes of this chapter, “gross negligence” includes the failure of an aider to relinquish direction of the care of an injured or ill person when an appropriate person licensed or certified by this state or by any state or province to provide medical care or assistance assumes or attempts to assume responsibility for the care of the injured or ill person.
Source:
S.L. 1987, ch. 403, § 1.
Collateral References.
Construction and application of “Good Samaritan” statutes, 68 A.L.R.4th 294.
Duty of retail establishment, or its employees, to assist patron choking on food, 2 A.L.R.5th 966.
Law Reviews.
For Case Comment: Health – Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).
32-03.1-02. Actions barred.
No person, or the person’s employer, subject to the exceptions in sections 32-03.1-03, 32-03.1-04, and 32-03.1-08, who renders aid or assistance necessary or helpful in the circumstances to other persons who have been injured or are ill as the result of an accident or illness, or any mechanical, external or organic trauma, may be named as a defendant or held liable in any personal injury civil action by any party in this state for acts or omissions arising out of a situation in which emergency aid or assistance is rendered, unless it is plainly alleged in the complaint and later proven that such person’s acts or omissions constituted intentional misconduct or gross negligence.
Source:
S.L. 1987, ch. 403, § 1.
Notes to Decisions
Rendering of Aid and Assistance.
The act of stopping at the scene of an accident and inquiring whether any assistance is needed can constitute the rendering of aid and assistance within the meaning of the Good Samaritan Act. McDowell v. Gillie, 2001 ND 91, 626 N.W.2d 666, 2001 N.D. LEXIS 107 (N.D. 2001).
Collateral References.
Construction and application of “Good Samaritan” statutes, 68 A.L.R.4th 294.
32-03.1-02.1. Emergency obstetrical services.
A physician licensed under chapter 43-17 who renders emergency obstetrical care or assistance to a pregnant female in active labor who has not previously been cared for in connection with the pregnancy by the physician or by another person professionally associated with the physician and whose medical records are not reasonably available to the physician is not liable in any personal injury civil action for acts or omissions resulting from the rendering of that emergency care or assistance, unless it is plainly alleged in the complaint and later proven that the physician’s acts or omissions constituted intentional misconduct or gross negligence. The immunity from civil liability provided by this section does not extend to a physician who renders emergency obstetrical care or assistance with an expectation of remuneration or who collects a fee for rendering that care or assistance.
Source:
S.L. 1989, ch. 409, § 1.
32-03.1-02.2. Immunity for a licensed health care provider who provides volunteer medical care at free clinics.
A health care provider licensed under title 43 who renders medical care on a voluntary basis at a free clinic is not liable in any personal injury civil action for acts or omissions resulting in the rendering of that care unless it is plainly alleged in the complaint and later proven that the health care provider’s acts or omissions constituted intentional misconduct or gross negligence. For purposes of this section, “voluntary” is defined as without receiving remuneration of any sort. “Free clinic” is defined as a clinic that is established to provide primary health care to persons who are otherwise unable to obtain medical services due to their lack of access to health insurance or medical assistance.
Source:
S.L. 1991, ch. 354, § 1.
32-03.1-02.3. Automated external defibrillators — Liability limited.
An individual who in good faith and without compensation provides training to use an automated external defibrillator, emergency care by using an automated external defibrillator, or emergency treatment by using an automated external defibrillator is immune from civil liability for any personal injury resulting from the training, emergency care, or emergency treatment and for any act or failure to act in providing or arranging further medical treatment if the individual providing the training, emergency care, or emergency treatment acted as an ordinary, reasonable, prudent person would act under the same or similar circumstances. This section does not apply if a personal injury results from the gross negligence or from the willful or wanton misconduct of the individual providing the training, emergency care, or emergency treatment. This section provides immunity to the person responsible for the site on which the automated external defibrillator is located. This section does not limit civil liability protection provided by any other law.
Source:
S.L. 1999, ch. 300, § 1; 2005, ch. 295, § 1; 2007, ch. 287, § 1; 2015, ch. 241, § 1, effective August 1, 2015; 2017, ch. 233, § 1, effective August 1, 2017.
Effective Date.
The 2015 amendment of this section by section 1 of chapter 241, S.L. 2015 became effective August 1, 2015.
32-03.1-03. Criminal immunity.
No person who renders aid or assistance necessary or helpful in the circumstances to other persons who have been injured or are ill as the result of an accident or sudden illness or any mechanical, external, or organic trauma may be criminally charged in this state for having practiced medicine or nursing without a license, provided that the aider shall relinquish direction of the care of the injured person when an appropriate person licensed or certified by this state or by any state or province to provide medical care or assistance assumes responsibility for the care of the injured person.
Source:
S.L. 1987, ch. 403, § 1.
32-03.1-04. Fees or reimbursement for aid.
Nothing in this chapter may be construed to deprive any physician or surgeon licensed in this state of the right to collect reasonable fees for any acts of aid, assistance, or treatment or any other person rendering aid or assistance under this chapter, or those whose property is necessarily damaged in the course of such aid or assistance under this chapter, of the right to reimbursement, from the injured or ill person or that person’s estate for any expenses or damages which appeared reasonable and necessary to incur under the circumstances. Any person rendering aid or assistance with an expectation of remuneration shall not be covered by the provisions of this chapter.
Source:
S.L. 1987, ch. 403, § 1.
Law Reviews.
For Case Comment: Health – Medical Malpractice Defenses: Applying Good Samaritan Laws to In-Hospital Emergencies (Chamley V. Khokha, 2007 Nd 69, 730 N.W.2d 864), see 84 N.D. L. Rev. 535 (2008).
32-03.1-05. Exceptions.
This chapter does not encompass a person who, at the time of the emergency, was employed expressly or actually for the purpose of providing emergency medical aid to humans, either within or outside of a hospital or other place or vehicle with medical equipment, for emergency medical aid or other assistance rendered in the regular course of the person’s employment. Such persons and their employers are liable for their acts and omissions in rendering emergency medical aid in the regular course of their employment, according to the prevailing law in this state.
Source:
S.L. 1987, ch. 403, § 1; 2001, ch. 305, § 1.
32-03.1-06. Limited repealer.
This chapter supersedes any conflicting provision of law which is inconsistent with this chapter except sections 23-27-04.1, 32-03-40, 32-03-42, 39-08-04.1, 43-12.1-12, 43-17-37, and 43-17-38.
Source:
S.L. 1987, ch. 403, § 1; 1989, ch. 410, § 1; 1995, ch. 403, § 1.
32-03.1-07. Costs and fees.
Notwithstanding any other provision in the laws of this state, or any court rules, if a party names a defendant in a suit alleging intentional misconduct or gross negligence, as described in section 32-03.1-01, and the trial judge dismisses the complaint or grants a defendant’s motion for judgment on the pleadings, or directs a verdict for a defendant, or grants a defendant’s motion for judgment notwithstanding the verdict, or at any point in the proceedings grants a plaintiff’s motion to discontinue the action against the defendant, the defendant shall be entitled to full costs and reasonable attorney’s fees expended in connection with the defendant’s defense of the action. If good reason is shown, the trial judge may suspend the operation of this section.
Source:
S.L. 1987, ch. 403, § 1.
32-03.1-08. Actions not barred.
Nothing in this chapter may be construed to bar a civil action by any injured or ill person or injured or ill person’s survivors against any person for having tortiously caused an injury or emergency situation. Nothing in this chapter may be construed to relieve any person, tortiously causing an injury or emergency situation, from any affirmative duty to provide proper aid or assistance. If the defendant prevails in such an action, the defendant shall be entitled to costs and fees only as the other statutes and court rules of this state provide.
Source:
S.L. 1987, ch. 403, § 1.
CHAPTER 32-03.2 Fault, Damages, and Payments
32-03.2-01. Definition.
As used in this chapter, “fault” includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to tort liability or dram shop liability. The term also includes strict liability for product defect, breach of warranty, negligence or assumption of risk, misuse of a product for which the defendant otherwise would be liable, and failure to exercise reasonable care to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.
Source:
S.L. 1987, ch. 404, § 1.
Note.
This chapter, which became effective July 8, 1987, applies to claims for relief which accrue after that date.
Section 1 of chapter 339, S.L. 1993, effective April 30, 1993, as well as section 5 of chapter 324, S.L. 1993, repealed section 15 of chapter 404, S.L. 1987, which had provided that this chapter would expire June 30, 1993.
Notes to Decisions
Applicability.
Trial court erred in granting judgment on an injured party’s dram shop claim. The injured party, who claimed that she was pushed to the ground by a bar patron, testified she saw the bar patron drinking beer at the bar earlier that night and noticed signs that would suggest that the bar patron was obviously intoxicated. Forsman v. Blues, Brews and Bar-B-Ques, Inc., 2012 ND 184, 820 N.W.2d 748, 2012 N.D. LEXIS 186 (N.D. 2012).
“Fault.”
This section indicates that the focus for determining tort liability has been shifted from traditional, doctrinal labels to the singular, inclusive concept of “fault.” Erickson v. Schwan, 453 N.W.2d 765, 1990 N.D. LEXIS 70 (N.D. 1990).
Intentional Acts.
There are many types of fault which the court must consider when comparing the fault of the parties. The court is not limited to simply comparing the negligence of both sides, but must consider all fault, including what would have traditionally been considered intentional torts or intentional conduct. Champagne v. United States, 836 F. Supp. 684, 1992 U.S. Dist. LEXIS 21977 (D.N.D. 1992), aff'd, 40 F.3d 946, 1994 U.S. App. LEXIS 32952 (8th Cir. N.D. 1994).
Prospective Application.
This chapter could not be retroactively applied to require the use of a combined fault assessment form in a case involving both negligence and strict liability claims which accrued before July 8, 1987. Butz v. Werner, 438 N.W.2d 509, 1989 N.D. LEXIS 61 (N.D. 1989).
DECISIONS UNDER PRIOR LAW
Contribution for Intentional Criminal Act.
This section addresses only negligence and does not authorize or require a diminution in the amount of damages awarded to an injured party by any amount that might be attributable to another person’s non-negligent, intentional, and criminal act. McLean v. Kirby Co., 490 N.W.2d 229, 1992 N.D. LEXIS 173 (N.D. 1992).
Defenses of Assumption of Risk and Contributory Negligence Abrogated.
Adoption of the doctrine of comparative negligence by the 1973 Legislature abrogated the affirmative defenses of assumption of risk and contributory negligence in North Dakota. Wentz v. Deseth, 221 N.W.2d 101, 1974 N.D. LEXIS 216 (N.D. 1974).
Determination of Contribution.
In determining the right of a tort-feasor to contribution in a comparative negligence action, the pro rata shares of the common liability are to be determined in proportion to the percentage of negligence attributable to each tort-feasor under this section. Butz v. Werner, 470 N.W.2d 224, 1991 N.D. LEXIS 96 (N.D. 1991).
Liability Where Partially at Fault.
A defendant may be held liable for a plaintiff’s total recoverable damages even when a jury finds that defendant only partially at fault. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).
In an action involving a negligent plaintiff and more than one negligent defendant, the plaintiff can recover from each of the defendants where the plaintiff’s share of the negligence is less than the sum of the shares of negligence apportioned to the negligent defendants. Beaudoin v. Texaco, Inc., 653 F. Supp. 512, 1987 U.S. Dist. LEXIS 1310 (D.N.D. 1987).
Where the jury found that plaintiff’s damages were proximately caused eighty percent by her own negligence, fifteen percent by defendant and five percent by a third parties’ negligence, plaintiff, under former section 9-10-07, was precluded from any award of damages. Garrett v. Nagel, 417 N.W.2d 855, 1988 N.D. App. LEXIS 2 (N.D. Ct. App. 1988).
Even if the borrower’s attorney was negligent in signing an opinion letter regarding liens on collateral without an investigation of liens, there was ample evidence in the record to support the trial judge’s conclusion that the lender was also negligent and that its negligence exceeded that of the attorney. Greyhound Leasing & Financial Corp. v. Norwest Bank of Jamestown, N.W., 854 F.2d 1122, 1988 U.S. App. LEXIS 11661 (8th Cir. N.D. 1988).
Loss of Consortium.
A wife’s claim for loss of consortium is an independent right, not contingent upon the rights or liabilities of her husband. Herold v. Burlington Northern, Inc., 761 F.2d 1241, 1985 U.S. App. LEXIS 31426 (8th Cir. N.D.), cert. denied, 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 177, 1985 U.S. LEXIS 3868 (U.S. 1985).
Momentary Forgetfulness Doctrine.
A plaintiff’s momentary forgetfulness of a known danger is something that trier of fact may consider in connection with all other circumstances involved in determining whether or not plaintiff and defendant were exercising reasonable care under circumstances, and, if not, in apportioning negligence of parties in allowing damages under former N.D.C.C. § 9-10-07; adoption of comparative negligence has not rendered a momentary forgetfulness instruction inapplicable. Keller v. Vermeer Mfg. Co., 360 N.W.2d 502, 1984 N.D. LEXIS 433 (N.D. 1984).
Negligent Entrustment Jury Instruction.
A jury given a negligent entrustment instruction should be further instructed that if there is negligent entrustment by the defendant, a foreseeable misuse of the chattel by the person to whom it is entrusted cannot be a superseding cause which will extinguish the defendants’ liability for harm caused by the misuse. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).
Passenger.
The negligence of a driver cannot be imputed to his passenger. Herold v. Burlington Northern, Inc., 761 F.2d 1241, 1985 U.S. App. LEXIS 31426 (8th Cir. N.D.), cert. denied, 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 177, 1985 U.S. LEXIS 3868 (U.S. 1985).
Personal Injury.
The trial court erred in giving the jury an assumption of risk instruction in a personal injury action; when the legislature adopted this section it omitted the language upon which the doctrine of assumption of risk was based, thereby abolishing the doctrine. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).
Where, in a personal injury action, evidence showed that a hardware dealer had sold a pistol to a 15-year-old boy who negligently shot the victim, failure to instruct the jury on a theory of negligent entrustment was reversible error. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).
Police Chase.
In an action for damages against law enforcement officers and their employers for the wrongful death of a passenger in a vehicle being pursued by the officers, who was killed when the vehicle rolled in the ditch after colliding with a pursuing State Highway Patrol vehicle, it was reversible error for the court to fail to attribute any percentage of fault to the driver of the vehicle. Jones v. Ahlberg, 489 N.W.2d 576, 1992 N.D. LEXIS 158 (N.D. 1992).
Purpose.
The comparative negligence statute was enacted to eliminate the inequities under the former contributory negligence act which denied a recovery if the plaintiff was contributorily negligent even as little as one percent. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).
Singular Becomes Plural.
In the absence of a plain meaning of this section’s text, N.D.C.C. § 1-01-35 becomes operative, and the term “person” in N.D.C.C. § 9-10-07 must be taken to include both the singular and the plural. Beaudoin v. Texaco, Inc., 653 F. Supp. 512, 1987 U.S. Dist. LEXIS 1310 (D.N.D. 1987).
Statutorily Immune Employers.
The “person against whom recovery is sought” under this section includes statutorily immune employers who were not made parties to the action. Beaudoin v. Texaco, Inc., 653 F. Supp. 512, 1987 U.S. Dist. LEXIS 1310 (D.N.D. 1987).
The operation of the joint and several liability provision of this section and the immunity provision of N.D.C.C. § 65-04-28 rendered the joint tortfeasor liable for the negligence of the immune employers, as well as its own negligence. Beaudoin v. Texaco, Inc., 653 F. Supp. 512, 1987 U.S. Dist. LEXIS 1310 (D.N.D. 1987).
Unreasonably Encountering a Known Risk.
Under comparative negligence law the jury, when it finds that the plaintiff has unreasonably encountered a known risk, must, as with any other contributory negligence of the plaintiff, compare that conduct with the negligence of the defendant and apportion the negligence accordingly. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).
Waiver.
Provision that joint tort-feasor shall remain jointly and severally liable for the whole award may be waived by the injured party. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).
Collateral References.
Three people: comparative negligence rule where misconduct of three or more persons is involved, 8 A.L.R.3d 722.
Comment note on the doctrine of comparative negligence and its relation to the doctrine of contributory negligence, 32 A.L.R.3d 463.
Restrospective application of state statute substituting rule of comparative neligence for that of contributory negligence, 37 A.L.R.3d 1438.
Contribution or indemnity between joint tortfeasors on basis of relative fault, 53 A.L.R.3d 184.
Modern development of comparative negligence doctrine having applicability to negligence actions generally, 78 A.L.R.3d 339.
Liability for injury to martial arts participant, 47 A.L.R.4th 403.
Commercial renter’s negligence liability for customer’s personal injuries, 57 A.L.R.4th 1186.
Comparative fault: calculation of net recovery by applying percentage of plaintiff’s fault before or after subtracting amount of settlement by less than all joint tortfeasors, 71 A.L.R.4th 1108.
Rescue doctrine: applicability and application of comparative negligence principles, 75 A.L.R.4th 875.
Validity, construction, and effect of statute limiting amount recoverable in dram shop action, 78 A.L.R.4th 542.
Applicability of comparative negligence doctrine to actions based on negligent misrepresentation, 22 A.L.R.5th 464.
Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim, 69 A.L.R.5th 625.
Comparative negligence, contributory negligence and assumption of risk in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow, 83 A.L.R.5th 589.
Law Reviews.
Negligence — The Unit Rule and North Dakota’s Comparative Negligence Statute, 64 N.D. L. Rev. 135 (1988).
Automobiles: Vehicle Kept for Use of Family: The “Family Purpose” Doctrine — Just What Is Its Purpose in North Dakota? Schobinger v. Ivey, 467 N.W.2d 728 (1991), 68 N.D. L. Rev. 209 (1992).
32-03.2-02. Modified comparative fault.
Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering. The court may, and when requested by any party, shall direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury. The court shall then reduce the amount of such damages in proportion to the amount of fault attributable to the person recovering. When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault. Under this section, fault includes negligence, malpractice, absolute liability, dram shop liability, failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid injury, and product liability, including product liability involving negligence or strict liability or breach of warranty for product defect.
Source:
S.L. 1987, ch. 404, § 2; 1993, ch. 324, § 2.
Cross-References.
Railroad employee’s contributory negligence not bar to recovery from railroad, see N.D.C.C. § 49-16-03.
Notes to Decisions
- Constitutionality.
- Consequential damages.
- Acting “In Concert”.
- Applicability.
- Assumption of Risk.
- Collateral Estoppel.
- Consequential Damages.
- Contribution Among Tort-Feasors.
- Inherent Risks.
- Intentional Acts.
- Joint and Several Liability.
- Jury Instructions.
- Medical Expenses.
- Medical Malpractice.
- Multiple Defendants.
- Non-Sued Tort-Feasor.
- Purpose.
- Question of Fact.
- Settling with Some Defendants.
- Suicide.
Constitutionality.
The rational basis test was applicable to an equal protection challenge to this section. The elimination of joint and several liability under this section affects the amount of damages that an injured party may recover; however, that party is not denied access to the courts. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).
The legislative classification in this section is rationally related to a legitimate legislative goal of the fixing responsibility for and paying of damages and, therefore, does not violate equal protection. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).
This section bears a reasonable relation to the desired result of apportioning liability and damages among those persons responsible for another person’s injuries, is not arbitrary, unreasonable or discriminatory, and does not violate due process. Haff v. Hettich, 1999 ND 94, 593 N.W.2d 383, 1999 N.D. LEXIS 116 (N.D. 1999).
Consequential damages.
Evidence of a driver’s intoxication was not relevant under N.D. R. Evid. 402 where although the family members were allowed to recover pain, suffering, mental anguish, and emotional distress damages from their loved ones’ deaths, any damages due to the driver’s negligence preceding the deaths, including intoxication, were not compensable under N.D.C.C. §§ 32-21-02 or 32-03.2-02. Zander v. Morsette, 2021 ND 84, 959 N.W.2d 838, 2021 N.D. LEXIS 84 (N.D. 2021).
Acting “In Concert”.
University did not act in concert with 10K race sponsors who held race at university and thus was not jointly liable for any negligence attributable to the sponsors; there was no evidence that the university participated with the race sponsors in the planning and supervision of entrants running in the race and as a matter of law university hockey team player who became severely dehydrated while running in the race failed to show any common plan or design necessary for an “in concert” action. Reed v. University of North Dakota, 1999 ND 25, 589 N.W.2d 880, 1999 N.D. LEXIS 27 (N.D. 1999).
Plaintiff investors’ common law fraud claims failed because: (1) the conduct on which the fraud claim was based needed to be actionable fraud without the assistance of N.D.C.C. § 10-04-15; (2) N.D.C.C. § 32-03.2-02 did not create an independent basis of liability; (3) the investors presented no evidence that defendant attorney himself made any fraudulent statements and omissions, and (4) they failed to present any evidence to raise a genuine issue of material fact that there was a common plan to commit fraud or that the attorney knew that a seller of securities was making fraudulent statements and omitting material information in soliciting investors. Ward v. Bullis, 2008 ND 80, 748 N.W.2d 397, 2008 N.D. LEXIS 81 (N.D. 2008).
Applicability.
— In General.
In a breach of warranty action stemming from a construction contract, the district court properly refused to instruct on comparative fault; the modified comparative fault statute, N.D.C.C. § 32-03.2-02, did not apply where the cause of action arose out of a contract between the parties, and the damages sought were for the loss of the expected bargain only. Leno v. K & L Homes, Inc., 2011 ND 171, 803 N.W.2d 543, 2011 N.D. LEXIS 171 (N.D. 2011).
—Dram Shops.
The 1987 dram shop amendments to N.D.C.C. § 5-01-06.1 plainly granted persons injured by an obviously intoxicated person a dram shop claim for relief under the comparative fault guidelines against persons who knowingly sell alcoholic beverages to the intoxicated person while that person is obviously intoxicated; the amendments specifically incorporated the requirement of this section for allocation of fault among all persons “who contributed to the injury.” Stewart v. Ryan, 520 N.W.2d 39, 1994 N.D. LEXIS 169 (N.D. 1994).
Where dram shop claims were settled by patron allegedly injured in bar, if requested by any party, the court should provide separate interrogatories to the jury on defendant’s dram shop and common law fault, so that the jury would be free to assess separate percentages of fault for those claims. Zueger v. Carlson, 542 N.W.2d 92, 1996 N.D. LEXIS 21 (N.D. 1996).
Truck passengers riding with intoxicated minor driver were not liable under this section to passengers in another vehicle injured when truck struck that vehicle; truck passengers did not provide the driver with alcohol before or during the drive, did not encourage the driver to drink, and there was no evidence to show that the passengers knew the driver was intoxicated. Hurt v. Freeland, 1999 ND 12, 589 N.W.2d 551, 1999 N.D. LEXIS 4 (N.D. 1999).
Assumption of Risk.
This section includes not only negligence, but also assumption of risk within the definition of “fault” to be compared in an action for damages. Erickson v. Schwan, 453 N.W.2d 765, 1990 N.D. LEXIS 70 (N.D. 1990).
Collateral Estoppel.
Although the divorce court found a wife generally caused the husband's losses, the record did not reflect the divorce court assigned this exact fault. The wife's affirmative defense of comparative fault prevented collateral estoppel from establishing her liability for the husband's claims. Norberg v. Norberg, 2017 ND 14, 889 N.W.2d 889, 2017 N.D. LEXIS 29 (N.D. 2017).
Consequential Damages.
In a case decided under N.D.C.C. § 32-03.2-03 (now repealed), where a farmer delivered winter wheat to a grain elevator instead of the promised spring wheat, in awarding consequential damages, the trial court correctly compared the “fault” of the farmer and the elevator that caused those damages and apportioned them accordingly. Dakota Grain Co. v. Ehrmantrout, 502 N.W.2d 234, 1993 N.D. LEXIS 112 (N.D. 1993).
Contribution Among Tort-Feasors.
A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable; therefore, because there was no evidence that the third party defendant’s liability was extinguished by the defendant’s settlement with the plaintiffs, the defendant was not entitled to maintain an action for contribution against the third party defendant. Pierce v. Shannon, 2000 ND 54, 607 N.W.2d 878, 2000 N.D. LEXIS 47 (N.D. 2000).
Because N.D.C.C. § 32-03.2-02 provided that a party was only liable for its own fault, an employer’s claim against a truck owner and driver for contribution was foreclosed; however, genuine issues of material fact existed concerning the employer’s crossclaim for indemnification. Campbell v. BNSF Ry. Co., 756 F. Supp. 2d 1109, 2010 U.S. Dist. LEXIS 138218 (D.N.D. 2010).
In an action brought by the surviving spouse of a deceased heavy construction equipment operator who was killed when a nine-wheel pneumatic rubber tire roller compactor he was operating rolled over, because the court denied summary judgment to the distributor and the seller on the spouse’s claims of strict products liability, failure to warn, and negligence, in accordance with N.D.C.C. § 32-03.2-02, the jury would be allowed to consider the “fault” of each party and assess whether the manner in which the decedent operated the compactor contributed to his injuries and damages would be diminished in proportion to the amount of contributing fault. Reiss v. Komatsu Am. Corp., 735 F. Supp. 2d 1125, 2010 U.S. Dist. LEXIS 85136 (D.N.D. 2010).
Phrase “legally entitled to collect” in N.D.C.C. § 26.1-40-15.3(1) was construed as defining the compensatory damages payable under underinsured coverage and contemplating an initial allocation for comparative fault under N.D.C.C. § 32-03.2-02, i.e., the scope of the damages underinsured coverage must pay was the compensatory damages attributable to the comparative fault of the owner or operator of the underinsured vehicle. Hiltner v. Owners Ins. Co., 2016 ND 45, 876 N.W.2d 460, 2016 N.D. LEXIS 45 (N.D. 2016).
Under the specific certified question, construing N.D.C.C. §§ 26.1-40-15.3(1) and 26.1-40-15.4(1)(b) together and in conjunction with comparative fault law, the federal district court should first reduce the past economic damages for the percentage of fault attributable to the underinsured insured, and other persons or parties, other than the operator or owner of the underinsured motor vehicle, and then deduct the no-fault benefits paid. Hiltner v. Owners Ins. Co., 2016 ND 45, 876 N.W.2d 460, 2016 N.D. LEXIS 45 (N.D. 2016).
Inherent Risks.
N.D.C.C. § 53-09-10, which bars recovery by a skier when an injury is caused by an inherent risk in skiing, does not conflict with the modified comparative fault statute found in this section. Bouchard v. Johnson, 555 N.W.2d 81, 1996 N.D. LEXIS 229 (N.D. 1996).
Intentional Acts.
There are many types of fault which the court must consider when comparing the fault of the parties. The court is not limited to simply comparing the negligence of both sides, but must consider all fault, including what would have traditionally been considered intentional torts or intentional conduct. Champagne v. United States, 836 F. Supp. 684, 1992 U.S. Dist. LEXIS 21977 (D.N.D. 1992), aff'd, 40 F.3d 946, 1994 U.S. App. LEXIS 32952 (8th Cir. N.D. 1994).
Even though an injury to the victim’s eye would not have occurred but for the shooter’s intentional act of pointing and firing an air gun at the victim, that act did not bar a jury from considering any alleged fault of other parties who contributed to the injury, specifically the manufacturer of the air gun. Symington v. Daisy Mfg. Co., 360 F. Supp. 2d 1027, 2005 U.S. Dist. LEXIS 4146 (D.N.D. 2005).
Because a jury’s findings that insureds acted in concert, as defined by N.D.C.C. § 32-03.2-02, when they wrongfully interfered with a business was res judicata as to whether their tortious conduct was intentional, their insurer had no duty to indemnify them. Coverage was precluded as a matter of law by intentional acts exclusions and by the public policy stated in N.D.C.C. §§ 9-08-02, 26.1-32-04; however, the jury’s findings did not relieve the insurer of the duty to defend, which was determined by the allegations in the underlying complaint. Tibert v. Nodak Mut. Ins. Co., 2012 ND 81, 816 N.W.2d 31, 2012 N.D. LEXIS 81 (N.D. 2012).
Joint and Several Liability.
Under this section, plaintiffs injured by two or more tortfeasors who do not act in concert in committing a tortious act or aid or encourage the act cannot recover under joint and several liability, while plaintiffs injured by two or more tortfeasors who act in concert in committing a tortious act or aid or encourage the act can recover under joint and several liability. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).
Trial court did not err in awarding a plaintiff costs and disbursements from the defendants jointly and severally, even though the defendants were severally liable for plaintiff’s damages under this section. Kavadas v. Lorenzen, 448 N.W.2d 219, 1989 N.D. LEXIS 214 (N.D. 1989).
“Aid” for purposes of joint and several liability is not defined by N.D.C.C. § 32-03.2-02 and has not been defined by case law. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).
District court did not err in denying credit corporation’s motion for judgment as a matter of law that an implement dealer aided a farmer’s conversion and was therefore jointly liable for the corporation’s damages because the district judge found whether the dealer “aided” the farmer in converting the tractor was a question of fact to be decided by the fact finder and the jury specifically found the dealer did not aid the farmer, so the dealer was only severally liable for the corporation’s damages. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).
Jury Instructions.
Where defendant had full opportunity to present evidence to the jury about nonparty’s fault in suit for negligence in construction of home, the jury weighed the evidence and decided that the damage was due to defendant’s negligence, not nonparty’s, and thus decided the negligence of both; viewing the instructions as a whole, the instructions fairly and adequately advised the jury of the law, and the minor items argued by defendant did not necessitate reversal. Barnes v. Mitzel Builders, 526 N.W.2d 244, 1995 N.D. LEXIS 7 (N.D. 1995).
A trial court should give an ultimate-outcome instruction in a comparative fault case if it is properly requested and the court determines the instruction will not confuse or mislead the jury. Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).
The trial court’s failure to inform the jury, sua sponte, about the effect of its answers to comparative fault questions on its award of damages was not error of constitutional magnitude under N.D. Const. art. I, § 9, or fundamental error affecting substantial rights and requiring a new trial given that the plaintiff did not request an ultimate-outcome instruction before trial, did not object to the omission of the instruction before the jury deliberated, did not request the instruction when the jury submitted its question during deliberations, and at best, the issue of whether an ultimate-outcome instruction could be given in North Dakota was unsettled when the trial was held. Sollin v. Wangler, 2001 ND 96, 627 N.W.2d 159, 2001 N.D. LEXIS 104 (N.D. 2001).
District court did not err in failing to give a jury instruction defining “aid” as used N.D.C.C. § 32-03.2-02 because the word was commonly understood, the failure to give a definition was not prejudicial, and the district court’s decision not to define “aid” was not an abuse of its discretion. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).
District court did not confuse the jury by including the entire modified comparative fault statute in the instruction and not just the relevant parts because, although the instruction given could have been simplified by eliminating the extra statutory language, there was nothing to indicate the instruction was calculated to mislead the jury. Case Credit Corp. v. Oppegard's, Inc., 2005 ND 141, 701 N.W.2d 891, 2005 N.D. LEXIS 174 (N.D. 2005).
Trial court did not err by failing to give the independent contractor jury instruction, N.D. Pattern Jury Instructions Civ. C-55.25 as requested by the general contractor because the jury instructions, taken together as a whole, fairly advised the jury of the law on the essential issues in the case, including comparative fault. The general contractor had stipulated to try the case on the issue of comparative fault. Travelers Cas. Ins. Co. of Am. v. Williams Co. Constr., 2014 ND 160, 851 N.W.2d 164, 2014 N.D. LEXIS 170 (N.D. 2014).
Medical Expenses.
Because a father’s claim for past medical expenses derived from his son’s injuries, and the son was denied recovery under North Dakota’s modified comparative fault laws, the district court correctly dismissed the father’s claim for his son’s medical expenses. M.M. v. Fargo Public Sch. Dist. No. 1, 2012 ND 79, 815 N.W.2d 273, 2012 N.D. LEXIS 69 (N.D. 2012).
Parent is not entitled to recover medical expenses paid on behalf of an injured minor child whose comparative fault exceeds the fault of the tortfeasor. M.M. v. Fargo Public Sch. Dist. No. 1, 2012 ND 79, 815 N.W.2d 273, 2012 N.D. LEXIS 69 (N.D. 2012).
Medical Malpractice.
This section requires apportionment of damages based on the percentages of fault attributable to the original tortfeasor and medical care providers who negligently treated the original injury. Haff v. Hettich, 1999 ND 94, 593 N.W.2d 383, 1999 N.D. LEXIS 116 (N.D. 1999).
Multiple Defendants.
Under the comparative fault law in N.D.C.C. § 32-03.2-02, the driver’s alleged negligence did not necessarily negate the landowner’s duty to plaintiff under premises liability law. Saltsman v. Sharp, 2011 ND 172, 803 N.W.2d 553, 2011 N.D. LEXIS 172 (N.D. 2011).
Non-Sued Tort-Feasor.
A non-sued tort-feasor, who did not act in concert with, nor aid or encourage a sued tort-feasor, nor ratify or adopt that tort-feasor’s act, is not liable for contribution to the sued tort-feasor. Target Stores v. Automated Maintenance Servs., 492 N.W.2d 899, 1992 N.D. LEXIS 239 (N.D. 1992).
Purpose.
The legislature’s intent in enacting this section was to replace joint and several liability with several allocation of damages among those who commit torts in proportion to the fault of those who contributed to an injury. Hurt v. Freeland, 1999 ND 12, 589 N.W.2d 551, 1999 N.D. LEXIS 4 (N.D. 1999).
Question of Fact.
Where trial court found that plaintiff had violated this section, and had been driving his vehicle in a manner which would not enable him to stop within the “assured clear distance ahead”, there was a genuine issue of material fact as to whether plaintiff’s negligence was as great as the negligence of railroad, and court erred in granting summary judgment to railroad. Kiemele v. Soo Line R.R., 93 F.3d 472, 1996 U.S. App. LEXIS 20889 (8th Cir. N.D. 1996).
Settling with Some Defendants.
Where trial court found injury to be proximately caused by combination of overloaded cartridge and defectively designed gun in equal proportion, there was an irreconcilable inconsistency in the findings because judgment against nonsettling manufacturer was ordered for the total amount of plaintiff’s damages found by the court, and that manufacturer was entitled to have plaintiff’s total damages reduced by the portion of fault attributable to settling defendants. Endresen v. Scheels Hardware & Sports Shop, 1997 ND 38, 560 N.W.2d 225, 1997 N.D. LEXIS 39 (N.D. 1997).
In a wrongful death action the trial court did not err in refusing to reduce the jury’s damage award against the car driver by the amount of the plaintiffs’ settlement with the vicariously liable car owner. Nelson v. Johnson, 1999 ND 171, 599 N.W.2d 246, 1999 N.D. LEXIS 191 (N.D. 1999).
Suicide.
In an action against a hospital under the Federal Tort Claims Act (28 USCS 26, 71 et seq.) by personal representatives for the estate of a decedent who committed suicide, where plaintiffs established that the negligence of the hospital was a proximate cause of the decedent’s death, the decedent bore ultimate and primary responsibility for his own death, and his contributory negligence was attributed to those who brought suit on his behalf. Champagne v. United States, 836 F. Supp. 684, 1992 U.S. Dist. LEXIS 21977 (D.N.D. 1992), aff'd, 40 F.3d 946, 1994 U.S. App. LEXIS 32952 (8th Cir. N.D. 1994).
A suicide victim’s fault is considered under this section but if the medical provider, knowing the patient is suicidal and too mentally incapacitated to assume responsibility for his own well-being, undertakes a duty of care to the patient that takes in the patient’s duty of self-care, then the patient’s fault in the act of suicide is greatly reduced. If the patient’s act of suicide is a foreseeable result of the medical provider’s breach of duty to treat the patient, the patient’s act of suicide cannot be deemed a superseding cause of the patient’s death that breaks the chain of causation between the medical provider and the patient, which absolves the medical provider of liability. Champagne v. United States, 513 N.W.2d 75, 1994 N.D. LEXIS 62 (N.D. 1994).
The fault of a suicide victim is attributable to plaintiffs who sue for wrongful-death damages. Champagne v. United States, 513 N.W.2d 75, 1994 N.D. LEXIS 62 (N.D. 1994).
DECISIONS UNDER PRIOR LAW
Constitutionality.
Former N.D.C.C. § 9-10-07 did not create classifications constituting invidious discrimination in violation of the equal protection or due process rights of the federal or state constitutions. Mauch v. Mfrs. Sales & Serv., 345 N.W.2d 338, 1984 N.D. LEXIS 245 (N.D. 1984).
Contribution Among Tort-Feasors.
In determining the right of a tort-feasor to contribution in a comparative negligence action under former N.D.C.C. § 9-10-07, the pro rata shares of the common liability was determined in proportion to the percentage of negligence attributable to each tort-feasor under this section. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).
Contributory Negligence.
Former N.D.C.C. § 9-10-07 did not abolish the concept of contributory negligence, it only abolished the former result of contributory negligence that a plaintiff’s contributory negligence barred recovery of any damages. The bar to recovery was, in essence, shifted from one percent to fifty percent. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).
Costs and Disbursements.
Plaintiff who recovers damages in a negligence action is entitled to recover costs and disbursements in an amount undiminished by percent of negligence attributable to him; former N.D.C.C. § 9-10-07 did not provide for any diminution in costs and disbursements allowed to a recovering plaintiff. Keller v. Vermeer Mfg. Co., 360 N.W.2d 502, 1984 N.D. LEXIS 433 (N.D. 1984).
Dramshop Actions.
Comparative negligence law does not apply to actions brought under the Dramshop Act. Feuerherm v. Ertelt, 286 N.W.2d 509, 1979 N.D. LEXIS 328 (N.D. 1979).
Release Given One of Two or More Persons Jointly Liable.
In a comparative negligence action under former N.D.C.C. § 9-10-07, when the plaintiff in good faith has given one of two or more persons liable in tort for his injury a general release, the fact finder shall determine the percentage of negligence attributable to the released tort-feasor as well as the percentage attributable to the remaining tort-feasors, and the damages shall be reduced by an amount proportionate to the percentage of negligence allocated to the released tort-feasor. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).
In an action for negligence arising under former N.D.C.C. § 9-10-07, a general release given in good faith to one of two or more persons liable in tort for the same injury, pursuant to N.D.C.C. ch. 32-28, discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor. Bartels v. Williston, 276 N.W.2d 113, 1979 N.D. LEXIS 207 (N.D. 1979).
Review on Appeal.
Court’s finding of the apportionment of the negligence will not be set aside on appeal unless such finding is clearly erroneous. Bauer v. Graner, 266 N.W.2d 88, 1978 N.D. LEXIS 247 (N.D. 1978).
Settling with Some Defendants.
By settling with some tortfeasors in a negligence action, a plaintiff expects to have his or her recovery reduced only by that portion of causal fault attributable to the settling defendants. The plaintiff does not impliedly agree, or expect as a natural consequence of entering into a settlement, that he or she will be forced to absorb portions of causal fault attributable to nonsettling tortfeasors who are either insolvent or statutorily immune from suit. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).
By settling with some tortfeasors in a negligence action, the plaintiff waives joint and several liability only between the settling and nonsettling defendants, and the nonsettling defendants may be held jointly and severally liable for the entire portion of causal fault reduced only by that portion of fault attributable to the settling defendants. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).
To redistribute a statutorily immune employer’s percentage of fault in a negligence action between all causal parties, where a settlement with some of those parties had already been made, so as to reduce plaintiff’s recovery is contrary to the joint and several liability provisions of this section. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).
Workers’ Compensation Act.
The comparative negligence statute has not impliedly amended N.D.C.C. § 65-01-09. State by Workmen's Compensation Bureau v. Clary, 389 N.W.2d 347, 1986 N.D. LEXIS 327 (N.D. 1986).
Where employee was injured in a work-related accident resulting from the negligence of his employer, who was 75 percent negligent, and a third party, who was 25 percent negligent, and the employee received workers’ compensation benefits for his injuries and filed an action against the third party in accordance with N.D.C.C. § 65-01-09, the trial court erred in reducing employee’s damage recovery against the third party by the percentage of negligence attributable to the employer, who was immune from suit because of the workers’ compensation exclusive remedy provision; such reduction of damage recovery was contrary to the express language of former N.D.C.C. § 9-10-07, which retains the doctrine of joint and several liability, permitting the employee to recover his damages in full from the third party. Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334, 1983 N.D. LEXIS 434 (N.D. 1983).
The Workers’ Compensation Act operates in North Dakota to foreclose an employer’s liability for contribution to a third-party tort-feasor. Hoerr v. Northfield Foundry & Mach. Co., 376 N.W.2d 323, 1985 N.D. LEXIS 459 (N.D. 1985).
Neither this section nor N.D.C.C. § 65-01-09 permits a reduction of the workers’ compensation bureau’s subrogation rights because the claimant is unable to recover his full damages from all tort-feasors. Kavadas v. North Dakota Workers Compensation Bureau, 466 N.W.2d 839, 1991 N.D. App. LEXIS 4 (N.D. Ct. App. 1991).
Collateral References.
Intentional provocation, contributory or comparative negligence, or assumption of risk as defense to action for injury by dog, 11 A.L.R.5th 127.
Applicability of comparative negligence principles to intentional torts, 18 A.L.R.5th 525.
Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim, 69 A.L.R.5th 625.
Law Reviews.
Comparative Negligence — North Dakota, 51 N.D. L. Rev. 745 (1975).
The North Dakota Equity for Tortfeasors Struggle — Judicial Action vs. Legislative Over-Reaction, 56 N.D. L. Rev. 67 (1980).
Merging Comparative Fault with Strict Liability Actions in North Dakota: In Search of a New Day, 61 N.D. L. Rev. 7 (1985).
Negligence-Damages-Expert Testimony on Plaintiff Motorcyclist’s Nonuse of a Helmet is Admissible Evidence on Issue of Damages, 60 N.D. L. Rev. 751 (1984).
Negligence — The Unit Rule and North Dakota’s Comparative Negligence Statute, 64 N.D. L. Rev. 135 (1988).
Intoxicating Liquors — Persons Liable: North Dakota Extends Statutory Dram Shop Liability to Social Hosts, 71 N.D. L. Rev. 743 (1995).
Constitutional Law — Workers Compensation: Equal Protection Challenge to the Agriculture Exemption and Use of Rational Basis Scrutiny in, Haney v. North Dakota Workers Compensation Bureau, 518 N.W.2d 195 (N.D. 1994), 71 N.D. L. Rev. 781 (1995).
Summary of North Dakota Supreme Court Decisions on Torts — Negligence, 71 N.D. L. Rev. 892 (1995).
Contracts v. Torts: North Dakota’s Aftermarket Risk Contract & Aftermarket Risk Insurance, Products Liability, and the General Aviation Industry, 72 N.D. L. Rev. 663 (1996).
North Dakota Supreme Court Review, 78 N.D. L. Rev. 579 (2002).
Note: North Dakota’s Seat Belt Defense: It’s Time For North Dakota To Statutorily Adopt the Doctrine of Avoidable Consequences, 87 N.D. L. Rev. 139 (2011).
Note: Collision Of Negligence Theory: Does A “Blackout” Constitute An Unavoidable, Sudden Emergency In North Dakota?, 87 N. Dak. L. Rev. 233 (2011).
32-03.2-02.1. Automobile accident damage liability.
Notwithstanding section 32-03.2-02, in an action by any person to recover direct and indirect damages for injury to property, the damages may not be diminished in proportion to the amount of contributing fault attributable to the person recovering, or otherwise, if:
- The person seeking damages is seeking property damages resulting from a motor vehicle accident in which two persons are at fault;
- The person seeking damages is seeking to recover direct physical property damages of not more than five thousand dollars and indirect physical property damages not to exceed one thousand dollars; and
- The percentage of fault of the person against whom recovery is sought is over fifty percent.
This section applies regardless as to whether the person seeking direct and indirect damages for injury to property also seeks damages for personal injury, however, damages for personal injury are not available under this section.
Source:
S.L. 1993, ch. 85, § 2; 1995, ch. 327, § 1; 2003, ch. 277, § 1.
Collateral References.
Liability of motorbus carrier or driver for death of, or injury to, discharged passenger struck by other vehicle, 16 A.L.R.5th 1.
32-03.2-03. Pure comparative fault — Product liability actions. [Repealed]
Repealed by S.L. 1993, ch. 324, § 5.
32-03.2-04. Economic and noneconomic damages for wrongful death or injury to person.
In any civil action for damages for wrongful death or injury to a person and whether arising out of breach of contract or tort, damages may be awarded by the trier of fact as follows:
- Compensation for economic damages, which are damages arising from medical expenses and medical care, rehabilitation services, custodial care, loss of earnings and earning capacity, loss of income or support, burial costs, cost of substitute domestic services, loss of employment or business or employment opportunities and other monetary losses.
- Compensation for noneconomic damages, which are damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, loss or illness, loss of society and companionship, loss of consortium, injury to reputation, humiliation, and other nonpecuniary damage.
Source:
S.L. 1987, ch. 404, § 4.
Notes to Decisions
- Applicability.
- Establishing Federal Diversity Jurisdiction.
- Injury to Child.
- Loss of Consortium.
- Loss of Enjoyment of Life.
- Mental Anguish.
- Pain and Suffering.
- Recovery by Children.
- Unborn Child.
- Wrongful Death of Child.
Applicability.
Although this section expressly applies only to claims accruing after July 8, 1987, it is indicative of legislative sentiment to allow these claims. Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).
Establishing Federal Diversity Jurisdiction.
In a personal injury and property damages case arising from a train derailment, the court had diversity jurisdiction since the individuals’ alleged physical injuries and injuries in the form of noneconomic damages allowed by N.D.C.C. § 32-03.2-04 could result in a jury verdict awarding damages in excess of $75,000. Mehl v. Canadian Pac. Ry., 2004 U.S. Dist. LEXIS 22791 (D.N.D. Nov. 8, 2004).
Injury to Child.
Damages could be awarded for loss of society and companionship in a parent’s action against an allegedly negligent tortfeasor in the injury of a minor child. Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).
Loss of Consortium.
—In General.
The effect of this section was not an expansion of the class of potential plaintiffs in loss of consortium claims; rather, it expanded the types of damages available to an already-existing class of plaintiffs. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).
—Children.
Children do not have a cause of action for loss of parental consortium. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).
—Joinder in Underlying Claim.
Plaintiffs bringing loss of consortium claims accruing on and after the date of this opinion must follow the procedure of compulsory joinder to the underlying personal injury action or thereafter be barred from bringing their claims, absent a compelling reason. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).
If the “deprived” party fails to join the underlying personal injury claim, that party must offer the court a compelling reason, for non-joinder will result in an absolute bar to any loss of consortium claim asserted after the conclusion of the underlying action of the “impaired” party. Butz v. World Wide, 492 N.W.2d 88, 1992 N.D. LEXIS 210 (N.D. 1992).
Loss of Enjoyment of Life.
The trial court did not err in refusing plaintiffs’ request to instruct on loss of enjoyment of life as a separate element of damages in a case where a fourteen-year-old boy was permanently disabled from an accidental gunshot wound. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).
Mental Anguish.
Damages for mental anguish may be recovered in a wrongful death action. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988); Dahl ex rel. Dahl v. North Am. Creameries, Inc., 61 N.W.2d 916 (N.D. 1953), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988); Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747 (1937), distinguished, Jacobson v. Mutual Benefit Health & Accident Ass’n, 73 N.D. 108, 11 N.W.2d 442 (1943), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988); Stejskal v. Darrow, 55 N.D. 606, 215 N.W. 83, 53 A.L.R. 1096 (1927), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988) and Haug v. Great N. Ry., 8 N.D. 23, 77 N.W. 97 (N.D. 1898), overruled in part, Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).
Pain and Suffering.
Trial court erred in granting defendant’s motion for a judgment as a matter of law given that the trial court dismissed plaintiff’s personal injury claim under a misconception of the law that a fact finder could not award damages for pain and suffering or other noneconomic loss unless plaintiff offered proof of economic damages. Albrecht v. Metro Area Ambulance, 2001 ND 61, 623 N.W.2d 367, 2001 N.D. LEXIS 58 (N.D. 2001).
Recovery by Children.
Adult children’s action against a doctor and a hospital under the North Dakota Wrongful Death Act, N.D.C.C. ch. 32-21, should not have been dismissed because as children of a decedent, the children were allowed to seek recovery of damages under N.D.C.C. §§ 32-21-03 and 32-21-04, and the non-economic damages requested by the children were permitted under N.D.C.C. § 32-03.2-04. Weigel v. Lee, 2008 ND 147, 752 N.W.2d 618, 2008 N.D. LEXIS 143 (N.D. 2008).
Unborn Child.
Damages in the amount of $50,000 for mental anguish and grief and $100,000 for loss of companionship, society and comfort were not clearly erroneous in an action for the death of an unborn child which would have been the plaintiff’s only daughter, in view of special significance of the mother-daughter relationship in Native American culture. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).
Failure in a medical malpractice action, to prove such strictly pecuniary losses as lost wages or out-of-pocket expenses did not preclude recovery of any damages for the death of an unborn child. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988).
Wrongful Death of Child.
One may recover damages for loss of society, comfort and companionship in an action for the wrongful death of a child. Hopkins v. McBane, 427 N.W.2d 85, 1988 N.D. LEXIS 152 (N.D. 1988); Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).
A parent can recover for the loss of a child’s society and companionship caused by the negligence of another. First Trust Co. v. Scheels Hardware & Sports Shop, 429 N.W.2d 5, 1988 N.D. LEXIS 153 (N.D. 1988).
Plaintiffs, parents of the adult decedent, were authorized to pursue a wrongful death claim against defendant corporation under N.D.C.C. § 32-21-03; therefore, they were also entitled to pursue a claim for non-economic damages as provided under this section because the emotional value of a child to the parents did not expire at majority. Schaaf v. Caterpillar, Inc., 264 F. Supp. 2d 882, 2003 U.S. Dist. LEXIS 12542 (D.N.D. 2003).
Collateral References.
Comparative fault: calculation of net recovery by applying percentage of plaintiff’s fault before or after subtracting amount of settlement by less than all joint tortfeasors, 71 A.L.R.4th 1108.
Who, other than parent, may recover for loss of consortium on death of minor child, 84 A.L.R.5th 687.
Construction and Application of Fraudulent Misjoinder Exception to Complete Diversity Rule,. 65 A.L.R. Fed. 2d 527.
Law Reviews.
Loss of Enjoyment of Life — Duplication of Damages Versus Full Compensation, 63 N.D. L. Rev. 561 (1987).
For Article: The Worth of a Human Life, see 85 N.D. L. Rev. 123 (2009).
North Dakota Supreme Court Review, (Weigel v. Lee, 2008 ND 147, 752 N.W.2d 618 (2008)), see 85 N. Dak. L. Rev. 503 (2009).
32-03.2-05. Separate finding on damages.
In awarding compensation for damages to any party, the trier of fact shall make separate findings which must specify:
- The amount of compensation for past economic damages.
- The amount of compensation for future economic damages.
- The amount of compensation for noneconomic damages.
Source:
S.L. 1987, ch. 404, § 5.
Notes to Decisions
Rational Boundaries.
This narrow channeling of the various categories of noneconomic claims should allay, if not dispel, apprehensions about rational boundaries on tort damages, while permitting evidentiary submission of cognizable factors. Jacobs v. Anderson Bldg. Co., 430 N.W.2d 558, 1988 N.D. LEXIS 155 (N.D. 1988).
32-03.2-06. Reduction for collateral source payments.
After an award of economic damages, the party responsible for the payment thereof is entitled to and may apply to the court for a reduction of the economic damages to the extent that the economic losses presented to the trier of fact are covered by payment from a collateral source. A “collateral source” payment is any sum from any other source paid or to be paid to cover an economic loss which need not be repaid by the party recovering economic damages, but does not include life insurance, other death or retirement benefits, or any insurance or benefit purchased by the party recovering economic damages.
Source:
S.L. 1987, ch. 404, § 6.
Notes to Decisions
- Application.
- Charitable Gifts.
- Legislative Intent.
- Personal Insurance Exception.
- Social Security Disability Benefits.
Application.
This section applies only to claims for relief which accrued after the effective date of the statute, July 8, 1987. Nelson v. Trinity Medical Ctr., 419 N.W.2d 886, 1988 N.D. LEXIS 27 (N.D. 1988).
Charitable Gifts.
For the purposes of this section, a charitable gift is not a sum “paid or to be paid to cover an economic loss,” and the legislature did not intend to treat charitable gifts as a “collateral source.” Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).
Legislative Intent.
The legislative intent of this section was to change the collateral source rule to eliminate double recovery from sources such as Workers' Compensation and Social Security. Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).
Personal Insurance Exception.
To the extent that an injured party’s family benefited from a service benefit agreement between the family’s health insurance carrier and health care providers, the benefit was traceable to the family’s insurance policy and, therefore, was properly included in the personal insurance exception of this section. Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).
The personal insurance exception in this section includes insurance purchased for a minor by a parent. Dewitz v. Emery, 508 N.W.2d 334, 1993 N.D. LEXIS 215 (N.D. 1993).
Benefits paid to personal injury plaintiff from Indian Health Services did not fall under the personal insurance exception to the collateral source rule and the district court did not err in reducing the judgment by the amount of those payments. Leingang v. George, 1999 ND 32, 589 N.W.2d 585, 1999 N.D. LEXIS 34 (N.D. 1999).
Social Security Disability Benefits.
Contractor’s motion to reduce the amount of damages awarded to a miner and his wife in a personal injury action under this section was denied because this section does not apply to social security disability benefits; Social Security is insurance purchased by an individual using a percentage of his or her paycheck, and the statute specifically excludes insurance. Krein v. Indus. Co., of Wyoming, 2003 U.S. Dist. LEXIS 18760 (D.N.D. Oct. 21, 2003).
Collateral References.
Collateral source rule: admissibility of evidence of availability to plaintiff of free public special education on issue of amount of damages recoverable from defendant, 41 A.L.R.5th 771.
32-03.2-07. Pleading of damages.
Any pleading for damages for death or injury to a person may pray for economic and noneconomic damages separately. Any prayer for noneconomic damages of less than fifty thousand dollars or for economic damages may be for a specific dollar amount. Any prayer for noneconomic damages for fifty thousand dollars or more must be stated generally as “a reasonable sum but not less than fifty thousand dollars”.
Source:
S.L. 1987, ch. 404, § 7.
32-03.2-08. Review of reasonableness of economic damages.
In addition to any other remedy provided by law and after a jury award of economic damages, any party responsible for the payment of any part thereof may request a review of the reasonableness of the award by the court as follows:
- Awards in excess of two hundred fifty thousand dollars before reduction for contributory fault and collateral source payments are subject to review for reasonableness under this chapter.
- The burden is on the moving party to establish that the amount of economic damage awarded was not reasonable in that it does not bear a reasonable relation to the economic damage incurred and to be incurred as proven by the party recovering the award.
- If the court finds that the jury award of economic damages is unreasonable, the court shall reduce the award to reasonable economic damages.
Source:
S.L. 1987, ch. 404, § 8.
Collateral References.
Validity, construction, and effect of statute limiting amount recoverable in dram shop action, 78 A.L.R.4th 542.
32-03.2-09. Periodic payments for continuing custodial care.
If an injured party claims future economic damages for continuing institutional or custodial care that will be required for a period of more than two years, at the discretion of the court any party may request the trier of fact to make a special finding of the total amount awarded for this care, separate from other future economic damages, and if a separate award is made, any party may make periodic payments for this care in an amount approved by the court, provided payment of the total award for this care is adequately secured. The adequacy of the periodic payments within the limit of the total award will be subject to review by the court from time to time, and upon the death of the injured person the obligation to provide for further continuing care shall terminate.
Source:
S.L. 1987, ch. 404, § 9.
32-03.2-10. Nondisclosure of reduction for collateral source payments.
The jury may not be informed of the potential for the reduction of economic damages because of payments from collateral sources.
Source:
S.L. 1987, ch. 404, § 10.
32-03.2-11. When court or jury may give exemplary damages.
- In any action for the breach of an obligation not arising from contract, when the defendant has been guilty by clear and convincing evidence of oppression, fraud, or actual malice, the court or jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant. Upon commencement of the action, the complaint may not seek exemplary damages. After filing the suit, a party may make a motion to amend the pleadings to claim exemplary damages. The motion must allege an applicable legal basis for awarding exemplary damages and must be accompanied by one or more affidavits or deposition testimony showing the factual basis for the claim. The party opposing the motion may respond with affidavit or deposition testimony. If the court finds, after considering all submitted evidence, that there is sufficient evidence to support a finding by the trier of fact that a preponderance of the evidence proves oppression, fraud, or actual malice, the court shall grant the moving party permission to amend the pleadings to claim exemplary damages. For purposes of tolling the statute of limitations, pleadings amended under this section relate back to the time the action was commenced.
- If either party so elects, the trier of fact shall first determine whether compensatory damages are to be awarded before addressing any issues related to exemplary damages. Evidence relevant only to the claim for exemplary damages is not admissible in the proceeding on liability for compensatory damages. If an award of compensatory damages has been made, the trier of fact shall determine whether exemplary damages are to be awarded.
- Evidence of a defendant’s financial condition or net worth is not admissible in the proceeding on exemplary damages.
- If the trier of fact determines that exemplary damages are to be awarded, the amount of exemplary damages may not exceed two times the amount of compensatory damages or two hundred fifty thousand dollars, whichever is greater; provided, however, that no award of exemplary damages may be made if the claimant is not entitled to compensatory damages. In a jury trial, the jury may not be informed of the limit on damages contained in this subsection. Any jury award in excess of this limit must be reduced by the court.
-
In order for a party to recover exemplary damages, the finder of fact shall find by clear and convincing evidence that the amount of exemplary damages awarded is consistent with the following principles and factors:
- Whether there is a reasonable relationship between the exemplary damage award claimed and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred;
- The degree of reprehensibility of the defendant’s conduct and the duration of that conduct; and
-
Any of the following factors as to which evidence is presented:
- The defendant’s awareness of and any concealment of the conduct;
- The profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss; and
- Criminal sanctions imposed on the defendant for the same conduct that is the basis for the exemplary damage claim, these to be taken into account if offered in mitigation of the exemplary damage award.
-
Exemplary damages may not be awarded against a manufacturer or seller if the product’s manufacture, design, formulation, inspection, testing, packaging, labeling, and warning complied with:
- Federal statutes existing at the time the product was produced;
- Administrative regulations existing at the time the product was produced that were adopted by an agency of the federal government which had responsibility to regulate the safety of the product or to establish safety standards for the product pursuant to a federal statute; or
- Premarket approval or certification by an agency of the federal government.
-
The defense in subsection 6 does not apply if the plaintiff proves by clear and convincing evidence that the product manufacturer or product seller:
- Knowingly and in violation of applicable agency regulations withheld or misrepresented information required to be submitted to the agency, which information was material and relevant to the harm in question; or
- Made an illegal payment to an official of the federal agency for the purpose of securing approval of the product.
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Exemplary damages may be awarded against a principal because of an act by an agent only if at least one of the following is proved by clear and convincing evidence to be true:
- The principal or a managerial agent authorized the doing and manner of the act;
- The agent was unfit and the principal or a managerial agent was reckless in employing or retaining the agent;
- The agent was employed in a managerial capacity and was acting in the scope of employment; or
- The principal or managerial agent ratified or approved the doing and manner of the act.
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In a civil action involving a motor vehicle accident resulting in bodily injury, it is sufficient for the trier of fact to consider an award of exemplary damages against the driver under the motion procedures provided in subsection 1 if clear and convincing evidence indicates that the accident was caused by a driver who, within the five years immediately preceding the accident has been convicted for violation of section 39-08-01 and who was operating or in physical control of a motor vehicle:
- With an alcohol concentration of at least eight one-hundredths of one percent by weight;
- Under the influence of a controlled substance unless a drug that predominantly caused impairment was used only as directed or cautioned by a practitioner who legally prescribed or dispensed the drug to the driver;
- Under the influence of alcohol and refused to take a test required under chapter 39-20; or
- Under the influence of a volatile chemical as listed in section 19-03.1-22.1.
At the trial in an action in which the trier of fact will consider an award of exemplary damages, evidence that the driver has been convicted of violating section 39-08-01 or an equivalent statute or ordinance is admissible into evidence.
Source:
S.L. 1987, ch. 404, § 11; 1993, ch. 324, § 3; 1995, ch. 305, § 2; 1997, ch. 285, § 1; 1999, ch. 301, § 1; 2003, ch. 48, § 28; 2009, ch. 285, § 1.
Effective Date.
The 2009 amendment of this section by section 1 of chapter 285, S.L. 2009 became effective August 1, 2009.
Note.
Section 12.1-31-06, referred to in this section, was repealed by S.L. 2001, ch. 214, § 10. For present provisions see § 19-03.1-22.1.
Section 2 of chapter 285, S.L. 1997 provides: “ APPLICATION. This Act applies only to actions commenced after the effective date of this Act [August 1, 1997].”
Notes to Decisions
- Amount.
- Consideration of claim.
- Consideration of Claim.
- Dependence On Underlying Claims.
- Evidence Insufficient.
- Evidence Sufficient.
- Issue for Jury.
- Law of Case.
- Misleading Information.
- Pleadings.
- Retroactive Application.
- Verdict Not Inconsistent.
Amount.
Where the jury specifically found that insurance company had acted in a malicious, oppressive, or fraudulent manner toward its policyholder, the necessary predicate for an award of punitive damages and this finding was supported by substantial evidence on the record, and the award of fifty thousand dollars was not excessive. Maristuen v. National States Ins. Co., 57 F.3d 673, 1995 U.S. App. LEXIS 14733 (8th Cir. N.D. 1995).
Consideration of claim.
District court misapplied the law in finding the necessary threshold of malice to add a claim for punitive damages as there was no evidence that the driver acted with ill will or wrongful motive and intended to injure the victims. Zander v. Morsette, 2021 ND 84, 959 N.W.2d 838, 2021 N.D. LEXIS 84 (N.D. 2021).
Consideration of Claim.
In an action brought pursuant to 29 USCS § 1132(a)(1)(B), a federal district court declined to consider the propriety of any punitive damage claim where the individual had yet to request leave to amend the complaint to include such a claim as required by this section. Slater v. Hartford Life, 2003 U.S. Dist. LEXIS 18172 (D.N.D. Oct. 1, 2003).
Dependence On Underlying Claims.
Law firm’s exemplary damages claim was properly dismissed because the claim was not independent of underlying abuse of process and malicious prosecution claims, which were properly dismissed. Rodenburg Law Firm v. Sira, 2019 ND 205, 931 N.W.2d 687, 2019 N.D. LEXIS 207 (N.D. 2019).
Evidence Insufficient.
Plaintiffs failed to make a showing sufficient to withstand defendants’ motion for summary judgment on the issue of punitive damages, where there was no evidence indicating that defendants’ acts were motivated by evil motive or intent or that their acts constituted oppression, fraud, malice or callous or reckless indifference to the rights of others. Veneklase v. City of Fargo, 904 F. Supp. 1038, 1995 U.S. Dist. LEXIS 19929 (D.N.D. 1995), rev'd in part, 78 F.3d 1264, 1996 U.S. App. LEXIS 3860 (8th Cir. N.D. 1996).
Northbound motorists’ motion to amend their complaint to add an exemplary damages claim, pursuant to N.D.C.C. § 32-03.2-11(1), was denied because the knowledge of an eastbound motorist, who did not see their car as she crossed an intersection, that her antidepressant medication should not have been taken with alcohol did not support a finding of oppression, fraud, or actual malice. McHugh v. Jacobs, 450 F. Supp. 2d 1019, 2006 U.S. Dist. LEXIS 74403 (D.N.D. 2006).
Given the lack of viable substantive claims by a debtor’s customers against a creditor, the customers’ claim for exemplary damages was futile, and a trial court was within its discretion to deny the customers’ motion to amend their pleadings to add a claim for exemplary damages. Thimjon Farms P'ship v. First Int'l Bank & Thimjon Farms P'ship v. First Int'l Bank & Trust, 2013 ND 160, 837 N.W.2d 327, 2013 N.D. LEXIS 162 (Sept. 6, 2013).
Defendant's use of plaintiff's property for disposal of off-lease saltwater was intentional and amounted to civil trespass because its use of property for that purpose went beyond its rights under lease. Injunction against further use of property for that purpose was appropriate, and plaintiff was entitled to statutory damages in same amount as would be appropriate if restitution principles were applied, but plaintiff was not entitled to punitive damages because it failed to prove that defendant acted with oppression, fraud, or actual malice. Raaum Estates v. Murex Petroleum Corp., 2017 U.S. Dist. LEXIS 103345 (D.N.D. July 5, 2017).
Evidence Sufficient.
Evidence was sufficient for jury to find insurer guilty of oppression, fraud, or malice, and award exemplary damages, where insurer did not properly investigate claim, alleged insured intended to misrepresent his income in application without evidence of such intent, talked to insured about settlement when he was hospitalized and under medication, threatened to sue if he sought help from an attorney, and suspended his benefits when it knew he was totally disabled. Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, 561 N.W.2d 273, 1997 N.D. LEXIS 61 (N.D. 1997).
Widow’s motion for leave to file an amended complaint to include a claim for punitive damages pursuant to N.D.C.C. § 32-03.2-11 was granted where the evidence submitted by the parties was sufficient, at this stage, to support a finding by the trier of fact that a preponderance of the evidence established that the corporation acted with oppression, fraud, or actual malice because the evidence presented to date arguably showed that (1) the corporation’s engineers were aware of a defective condition that existed; (2) the defective condition was not “designed out” and the speed control cable could stick with an open throttle to varying degrees; (3) the corporation did not adopt the protective boot or grommet that would have arguably “designed out” the defective condition; and (4) the corporation was aware that dirt and debris inside a speed control cable could have caused it to stick and that the application of the brakes when the speed control cable was stuck may not have necessarily overcome a stuck-open throttle. Olson v. Ford Motor Co., 2005 U.S. Dist. LEXIS 30526 (D.N.D. Nov. 29, 2005).
Punitive damage award was proper because defendant insurer’s tortious conduct (labeling plaintiff insured an arsonist based on insufficient grounds) evinced an indifference to or disregard of plaintiffs’ financial, emotional, and physical well-being, the insurer knew that plaintiffs were financially vulnerable, and the insurer’s treatment of plaintiffs’ claim was typical of how it handled similar claims; the record provided evidence of the reprehensibility of the insurer’s conduct. Moore v. Am. Family Mut. Ins. Co., 576 F.3d 781, 2009 U.S. App. LEXIS 18133 (8th Cir. N.D. 2009).
Issue for Jury.
There was evidence to support plaintiff’s claim of punitive damages and overcome summary judgment, where the court found reasonable jurors could conclude that police officers’ conduct in arresting plaintiff was justified, negligent, reckless, grossly negligent or willful; since the officers’ conduct was in dispute, summary judgment rejecting plaintiff’s request for punitive damages was not proper. Habiger v. City of Fargo, 905 F. Supp. 709, 1995 U.S. Dist. LEXIS 20073 (D.N.D. 1995).
Law of Case.
Defendant did not object to the jury being instructed on constructive fraud, did not object to the jury verdict that included a finding on constructive fraud, and did not object to the argument that exemplary damages were warranted at least in part due to constructive fraud; therefore, constructive fraud supporting exemplary damages became law of the case and the district court did not err entering judgment accordingly. McCormick, Inc. v. Fredericks, 2020 ND 161, 946 N.W.2d 728, 2020 N.D. LEXIS 170 (N.D. 2020).
Misleading Information.
The trial court’s finding that lessee had entered the original lease with misleading information did not constitute a specific finding of oppression, fraud, or malice, and thus the lessee was not entitled to an award of attorney fees and costs. Ehrman v. Feist, 1997 ND 180, 568 N.W.2d 747, 1997 N.D. LEXIS 198 (N.D. 1997).
Pleadings.
District court did not err by failing to award exemplary damages. Because the record did not show plaintiff moved to amend the pleadings to claim exemplary damages as required by statute, exemplary damages were not properly before the district court. Kuntz v. Leiss, 2020 ND 253, 952 N.W.2d 35, 2020 N.D. LEXIS 273 (N.D. 2020).
Retroactive Application.
Although this section did not govern because it was not enacted until 1993, the court applied the rule that when questions of law are presented for the first time, the court can take a sense of direction from the enactment of a later nonretroactive statute. Delzer v. United Bank, 1997 ND 3, 559 N.W.2d 531, 1997 N.D. LEXIS 9 (N.D. 1997).
The fact the legislature reduced the deterrent value of exemplary damages by restricting the extent that wrongdoers could be punished was not persuasive evidence that exemplary damages for conduct occurring before the legislative change was excessive. Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, 561 N.W.2d 273, 1997 N.D. LEXIS 61 (N.D. 1997).
Verdict Not Inconsistent.
There was no irreconcilable inconsistency between the jury’s award of attorney fees and its findings that employers did not abuse their qualified privilege and that a former employee was not entitled to an award of exemplary damages. The state of mind required for the jury to find no abuse of the qualified privilege and no entitlement to exemplary damages differs from the state of mind required for the jury to award attorney fees. Forster v. W. Dakota Veterinary Clinic, Inc., 2004 ND 207, 689 N.W.2d 366, 2004 N.D. LEXIS 348 (N.D. 2004), abrogated, Minto Grain, LLC v. Tibert, 2009 ND 213, 776 N.W.2d 549, 2009 N.D. LEXIS 224 (N.D. 2009).
DECISIONS UNDER PRIOR LAW
Note.
In light of the similarity of the subject matter, decisions under former N.D.C.C. § 32-03-07 are included in the annotations for this section.
Amount.
Under former N.D.C.C. § 32-03-07, there was no requirement that a punitive damage award be reasonably proportionate to the award of actual damages; however, an excessive punitive damages award would be set aside. Smith v. American Family Mut. Ins. Co., 294 N.W.2d 751, 1980 N.D. LEXIS 247 (N.D. 1980).
Under former N.D.C.C. § 32-03-07, in fixing punitive damages against defendant, a jury could consider defendant’s wealth. Dahlen v. Landis, 314 N.W.2d 63, 1981 N.D. LEXIS 371 (N.D. 1981).
Punitive damages are excessive when the amount of the award is so great that it indicates passion or prejudice on the part of the jury. Dewey v. Lutz, 462 N.W.2d 435, 1990 N.D. LEXIS 200 (N.D. 1990).
Breach of Contract.
Under former N.D.C.C. § 32-03-07, where plaintiff had not elected to waive its contract with defendant and recover in tort, it was not entitled to a jury instruction on the issue of punitive damages, even though it alleged it was entitled to them because defendant had threatened to put plaintiff out of business if it did not perform according to defendant’s expectations under a contract. Jamestown Farmers Elevator, Inc. v. General Mills, Inc., 413 F. Supp. 764, 1976 U.S. Dist. LEXIS 15288 (D.N.D. 1976), aff'd in part and rev'd in part, 552 F.2d 1285, 1977 U.S. App. LEXIS 13615 (8th Cir. N.D. 1977).
Distributor was not entitled to recover exemplary damages under former N.D.C.C. § 32-03-07 in an action against manufacturer for breach of the distributorship contract. Hall GMC v. Crane Carrier Co., 332 N.W.2d 54, 1983 N.D. LEXIS 256 (N.D. 1983).
Breach of Insurer’s Duty to Defend.
Action by an insured against an insurer, which alleged tortious breach of the implied covenant of good faith and fair dealing, malice, oppression, and fraud predicated on the insurer’s failure to defend the insured in a legal action as required by a provision in the policy, was an action in tort for which exemplary damages could be awarded under former section 32-03-07. Smith v. American Family Mut. Ins. Co., 294 N.W.2d 751, 1980 N.D. LEXIS 247 (N.D. 1980).
Duties in Partnership.
Absent an overriding provision in a partnership agreement, the courts of this state recognize and impose the full panoply of fiduciary duties in a partnership. Hence, these duties and obligations are in addition to the agreement, and an award of punitive damages for their breach was not precluded by former section 32-03-07. Froemming v. Gate City Federal Sav. & Loan Asso., 822 F.2d 723, 1987 U.S. App. LEXIS 7348 (8th Cir. N.D. 1987).
Exemplary Damages.
Under former N.D.C.C. § 32-03-07, a specific finding of oppression, fraud, or malice, actual or presumed, by the trier of fact was required to support an award of punitive damages. Napoleon Livestock Auction v. Rohrich, 406 N.W.2d 346, 1987 N.D. LEXIS 310 (N.D. 1987).
The absence of a specific finding of oppression, fraud, or malice, actual or presumed, was fatal to an award of exemplary damages under former 32-03-07. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).
Findings Required to Support Award.
Under former N.D.C.C. § 32-03-07, a specific finding of oppression, fraud, or malice, actual or presumed, by trier of fact was necessary to support an award of exemplary damages; intentional or willful conduct is not synonymous with fraudulent, oppressive or malicious conduct. Bismarck Realty Co. v. Folden, 354 N.W.2d 636, 1984 N.D. LEXIS 324 (N.D. 1984).
As a prerequisite to an award of punitive damages, the jury must find oppression, fraud, or malice, actual or presumed. Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 1991 N.D. LEXIS 20 (N.D. 1991).
Fraud or Malice.
Malice can be presumed from recklessness. Herold v. Burlington Northern, Inc., 761 F.2d 1241, 1985 U.S. App. LEXIS 31426 (8th Cir. N.D.), cert. denied, 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 177, 1985 U.S. LEXIS 3868 (U.S. 1985).
The only significant distinction between the torts of fraud and deceit is whether the wrongdoer happens to be a party to a contract. The conduct prohibited under the separate statutory definitions of fraud and deceit is substantially identical and, for purposes of the punitive damages statute (former N.D.C.C. § 32-03-07) fraud and deceit are synonymous. Dewey v. Lutz, 462 N.W.2d 435, 1990 N.D. LEXIS 200 (N.D. 1990).
Fraudulent Representations.
Under former N.D.C.C. § 32-03-07, where obligation not to make fraudulent representations arises from law, not contract, the breach of that obligation allows the jury to award exemplary damages. Powers v. Martinson, 313 N.W.2d 720, 1981 N.D. LEXIS 360 (N.D. 1981).
Insurance Company Acting in Bad Faith.
Bad faith on part of insurance company in denying coverage under its policy with an insured was not sufficient in itself to justify the awarding of exemplary damages to the insured under former N.D.C.C. § 32-03-07; an additional finding of oppression, fraud, or malice, actual or implied, was required. Corwin Chrysler-Plymouth v. Westchester Fire Ins. Co., 279 N.W.2d 638, 1979 N.D. LEXIS 248 (N.D. 1979).
Meaning of Terms.
The statutory terms “oppression, fraud, or malice” have well-established meanings, are sufficiently clear to persons of ordinary intelligence to afford a practical guide for behavior, and are capable of application in an even-handed manner. Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 1989 N.D. LEXIS 187 (N.D. 1989).
Mitigation.
The doctrine of mitigation of damages did not require a reduction in the amount of damages otherwise recoverable under former N.D.C.C. § 32-03-07 by assignor of oil and gas leases for breach of reassignment clauses by assignee; assignor’s purchase of other leases was a transaction distinct from any rights to leases for a different period of time, and there was no reason assignee should benefit from assignor’s additional effort and investment in a separate transaction. Mike Golden, Inc. v. Tenneco Oil Co., 450 N.W.2d 716, 1990 N.D. LEXIS 4 (N.D. 1990).
Oppression.
A father’s action guaranteeing his son’s bank debt, having the alleged effect of keeping cattle from the plaintiff who had purchased the cattle, did not fit the definition of oppression so as to warrant continuing a claim for punitive damages under former N.D.C.C. § 32-03-07 after subsequent discovery should have made it apparent to the plaintiff that such a claim was frivolous. Napoleon Livestock Auction v. Rohrich, 406 N.W.2d 346, 1987 N.D. LEXIS 310 (N.D. 1987).
This section authorizes the court to give damages to punish a defendant for oppressive conduct. “Oppression,” as used in this statute, means “subjecting a person to cruel and unjust hardship in conscious disregard of his rights.” Harwood State Bank v. Charon, 466 N.W.2d 601, 1991 N.D. LEXIS 25 (N.D. 1991).
Pleadings.
Complaint alleging that defendant engaged in “unlawful and prohibited conduct”; that defendant’s act “was not reasonably necessary”; that defendant did not take “reasonable care to avoid unnecessary injury to plaintiffs”; that defendant acted “without regard to the reasonable carrying capacity of plaintiffs’ land”; and that defendant’s act was “not a reasonable use of land” was insufficient to support an award of exemplary damages under former N.D.C.C. § 32-03-07. Intentional or willful conduct is not synonymous with oppressive, fraudulent or malicious conduct, and allegations of willful and intentional conduct will not warrant such a recovery. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).
Presumed Malice.
Presumed malice may be found where the defendant’s conduct amounts to a reckless disregard of the rights of others. Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 1991 N.D. LEXIS 20 (N.D. 1991).
Purpose of Punitive Damages.
The purpose for awarding punitive damages is to punish the wrongdoer in order to deter him, and others, from repetition of the wrongful conduct. Dahlen v. Landis, 314 N.W.2d 63, 1981 N.D. LEXIS 371 (N.D. 1981).
Retaining Personal Property.
Where a landlord retained virtually all of a tenant’s personal property for several months, disregarding notice that his actions were unlawful and legal advice to that effect, the trial court’s consequent award of exemplary damages under former N.D.C.C. § 32-03-07 was affirmed. Kipp v. Lipp, 495 N.W.2d 56, 1993 N.D. LEXIS 6 (N.D. 1993).
Wrongful Discharge.
Under former N.D.C.C. § 32-03-07, a suit for wrongful discharge in retaliation for seeking workmen’s compensation is the kind of tort claim which allows exemplary damages. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 1987 N.D. LEXIS 435 (N.D. 1987).
Collateral References.
Sufficiency of showing of actual damages to support award of punitive damages — modern cases, 40 A.L.R.4th 11.
Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.
Discovery of defendant’s sales, earnings, or profits on issue of punitive damages in tort action, 54 A.L.R.4th 998.
Punitive damages as within coverage of uninsured or underinsured motorist insurance, 54 A.L.R.4th 1186.
Plaintiff’s rights to punitive or multiple damages when cause of action renders both available, 2 A.L.R.5th 449.
Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.
Validity of state statutory cap on punitive damages, 103 A.L.R.5th 379.
Liability of cigarette manufacturers for punitive damages, 108 A.L.R.5th 343.
Law Reviews.
The Drunken Driver and Punitive Damages: A Survey of the Case Law and the Feasibility of a Punitive Damage Award in North Dakota, 59 N.D. L. Rev. 413 (1983).
Punitive Damages and Insurance: Are Punitive Damages Insurable? The North Dakota Supreme Court Says Yes, Despite North Dakota’s Public Policy to the Contrary, 70 N.D. L. Rev. 637 (1994).
32-03.2-12. Posttrial review.
Motions for periodic payments, reductions of awards for contributory fault and collateral source payments, for review of the reasonableness of an award, and for setting the amount of exemplary damages, must be made to the judge who presided over the trial of the action, unless the judge is unable to act, in which case, the motion must be presented to a judge designated by the presiding judge of the district in which the trial was held. The motion must be made within ten days of the jury verdict, or order of the court, and if so made, judgment may not be entered until the motion has been ruled on.
Source:
S.L. 1987, ch. 404, § 12.
CHAPTER 32-03.3 Charitable Organization Immunity
32-03.3-01. Definitions.
As used in this chapter, unless the context otherwise requires:
- “Charitable organization” means a nonprofit organization whose primary purpose is for relief of poor, disabled, underprivileged, or abused persons, support of youth and youth programs, or the prevention of abuse to children and vulnerable adults.
- “Claim” means any claim for money damages brought against a charitable organization or an employee of the charitable organization for an injury caused by the charitable organization or an employee of the charitable organization acting within the scope of the employee’s employment.
- “Employee” means every present or former officer or employee of the charitable organization or any person acting on behalf of the charitable organization in an official capacity, temporarily or permanently, with or without compensation.
- “Injury” means personal injury, death, or property damage.
- “Occurrence” means an accident, including continuous or repeated exposure to a condition, which results in an injury.
- “Personal injury” includes bodily injury, mental injury, sickness, or disease sustained by a person and injury to a person’s rights or reputation.
- “Property damage” includes injury to or destruction of tangible or intangible property.
- “Scope of employment” means the employee was acting on behalf of the charitable organization in the performance of duties or tasks of the charitable organization assigned to the employee by the charitable organization.
Source:
S.L. 2007, ch. 288, § 1.
32-03.3-02. Liability of charitable organizations — Limitations — Statute of limitations.
- A charitable organization may be only held liable for money damages for a personal injury or property damage proximately caused by the negligence or wrongful act or omission of an employee acting within the employee’s scope of employment.
- The liability of the charitable organization under this chapter is limited to a total of two hundred fifty thousand dollars per person and one million dollars for any number of claims arising from any single occurrence. The charitable organization may not be held liable, or be ordered to indemnify an employee held liable, for punitive or exemplary damages.
- An action brought under this chapter must be commenced within the period provided in chapter 28-01.
Source:
S.L. 2007, ch. 288, § 2.
CHAPTER 32-03.4 Structured Settlement Transfers
32-03.4-01. Definitions.
For purposes of this chapter:
- “Annuity issuer” means an insurer that has issued a contract to fund periodic payments under a structured settlement.
- “Dependent” includes a payee’s spouse and minor children and all other persons for whom the payee is legally obligated to provide support, including alimony or support.
- “Discounted present value” means the present value of future payments determined by discounting those payments to the present using the most recently published applicable federal rate for determining the present value of an annuity, as issued by the United States internal revenue service.
- “Gross advance amount” means the sum payable to the payee or for the payee’s account as consideration for a transfer of structured settlement payment rights before any reductions for transfer expenses or other deductions to be made from such consideration.
-
“Independent professional advice” means advice of an attorney, certified public accountant, actuary, or other licensed professional adviser:
- Who is engaged by a claimant or payee to render advice concerning the legal, tax, and financial implications of a structured settlement or a transfer of structured settlement payment rights;
- Who is not in any manner affiliated with or compensated by the defendant in the settlement or the transferee of the transfer; and
- Whose compensation for rendering the advice is not affected by whether a settlement or transfer occurs or does not occur.
- “Interested party” means, with respect to any structured settlement, the payee, any beneficiary irrevocably designated under the annuity contract to receive payments following the payee’s death, the annuity issuer, the structured settlement obligor, and any other party that has continuing rights or obligations under the structured settlement.
- “Net advance amount” means the gross advance amount less the aggregate amount of the actual and estimated transfer expenses required to be disclosed under subsection 5 of section 32-03.4-02.
- “Payee” means an individual who is receiving tax-free payments under a structured settlement and proposes to make a transfer of payment rights under the structured settlement.
- “Periodic payments” includes both recurring payments and scheduled future lump sum payments.
- “Qualified assignment agreement” means an agreement providing for a qualified assignment within the meaning of section 130 of the Internal Revenue Code [26 U.S.C. 130], as amended.
- “Settled claim” means the original tort claim or workers’ compensation claim resolved by a structured settlement.
- “Structured settlement” means an arrangement for periodic payment of damages for personal injuries or sickness established by settlement or judgment in resolution of a tort claim or for periodic payments in settlement of a workers’ compensation claim.
- “Structured settlement agreement” means the agreement, judgment, stipulation, or release embodying the terms of a structured settlement.
- “Structured settlement obligor” means, with respect to any structured settlement, the party that has the continuing obligation to make periodic payments to the payee under a structured settlement agreement or a qualified assignment agreement.
-
“Structured settlement payment rights” means rights to receive periodic payments under a structured settlement, whether from the structured settlement obligor or the annuity issuer, if at least one of the following applies:
- The payee is domiciled in, or the domicile or principal place of business of the structured settlement obligor or the annuity issuer is located in, this state;
- The structured settlement agreement was approved by a court in this state; or
- The structured settlement agreement is expressly governed by the laws of this state.
- “Terms of the structured settlement” includes, with respect to any structured settlement, the terms of the structured settlement agreement, the annuity contract, any qualified assignment agreement, and any order or other approval of any court or other governmental authority that authorized or approved such structured settlement.
- “Transfer” means any sale, assignment, pledge, hypothecation, or other alienation or encumbrance of structured settlement payment rights made by a payee for consideration. The term does not include the creation or perfection of a security interest in structured settlement payment rights under a blanket security agreement entered with an insured depository institution, in the absence of any action to redirect the structured settlement payments to the insured depository institution, or an agent or successor in interest thereof, or otherwise to enforce the blanket security interest against the structured settlement payment rights.
- “Transfer agreement” means the agreement that provides for a transfer of structured settlement payment rights.
- “Transfer expenses” means all expenses of a transfer which are required under the transfer agreement to be paid by the payee or deducted from the gross advance amount, including court filing fees, attorney’s fees, escrow fees, lien recordation fees, judgment and lien search fees, finder’s fees, commissions, and other payments to a broker or other intermediary. The term does not include pre-existing obligations of the payee payable for the payee’s account from the proceeds of a transfer.
- “Transferee” means a party acquiring or proposing to acquire structured settlement payment rights through a transfer.
Source:
S.L. 2009, ch. 286, § 1.
Effective Date.
This chapter became effective August 1, 2009.
32-03.4-02. Required disclosures to payee.
At least three days before the date on which a payee signs a transfer agreement, the transferee shall provide to the payee a separate disclosure statement, in bold and in at least fourteen-point type, setting forth:
- The amounts and due dates of the structured settlement payments to be transferred;
- The aggregate amount of the payments;
- The discounted present value of the payments to be transferred, which must be identified as the “calculation of current value of the transferred structured settlement payments under federal standards for ‘valuing annuities’”, and the amount of the applicable federal rate used in calculating the discounted present value;
- The gross advance amount;
- An itemized list of all applicable transfer expenses, other than attorney’s fees and related disbursements, payable in connection with the transferee’s application for approval of the transfer and the transferee’s best estimate of the amount of any such fees and disbursements;
- The net advance amount;
- The amount of any penalties or liquidated damages payable by the payee in the event of any breach of the transfer agreement by the payee; and
- A statement that the payee has the right to cancel the transfer agreement, without penalty or further obligation, no later than the third business day after the date the agreement is signed by the payee.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-03. Approval of transfers of structured settlement payment rights.
A direct or indirect transfer of structured settlement payment rights is not effective and a structured settlement obligor or annuity issuer may not be required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been approved in advance in a final court order based on the following express findings by the court:
- The transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents and whether the transaction, including the discount rate used to determine the gross advance amount and the fees and expenses used to determine the net advance amount, are fair and reasonable. If the court makes the findings as outlined in this subsection, there is not a requirement for the court to find that an applicant is suffering from a hardship to approve the transfer of structured settlement payments under this subsection;
- The payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received that advice or knowingly waived the advice in writing; and
- The transfer does not contravene any applicable statute or the order of any court or other governmental authority.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-04. Effects of transfer of structured settlement payment rights.
Following a transfer of structured settlement payment rights under this chapter:
- The structured settlement obligor and the annuity issuer are discharged and released from all liability for the transferred payments as to all parties except the transferee;
-
The transferee is liable to the structured settlement obligor and the annuity issuer:
- If the transfer contravenes the terms of the structured settlement, for any taxes incurred by those parties as a consequence of the transfer; and
- For any other liabilities or costs, including reasonable costs and attorney’s fees, arising from compliance by those parties with the order of the court or arising as a consequence of the transferee’s failure to comply with this chapter;
- Neither the annuity issuer nor the structured settlement obligor may be required to divide any periodic payment between the payee and any transferee or assignee or between two or more transferees or assignees; and
- Any further transfer of structured settlement payment rights by the payee may be made only after compliance with all of the requirements of this chapter.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-05. Procedure for approval of transfers.
- An application for approval of a transfer of structured settlement payment rights under this chapter must be made by the transferee and may be brought in the county in which the payee resides, in the county in which the structured settlement obligor or the annuity issuer maintains its principal place of business, or in any court that approved the structured settlement agreement.
-
At least twenty days before the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under section 32-03.4-03, the transferee shall file with the court and serve on all interested parties a notice of the proposed transfer and the application for its authorization. The notice must include:
- A copy of the transferee’s application;
- A copy of the transfer agreement;
- A copy of the disclosure statement required under section 32-03.4-02;
- A list of each of the payee’s dependents and each dependent’s age;
- Notification that any interested party is entitled to support, oppose, or otherwise respond to the transferee’s application, either in person or by counsel, by submitting written comments to the court or by participating in the hearing;
- Notification of the time and place of the hearing; and
- Notification of the manner in which and the time by which written responses to the application must be filed in order to be considered by the court, which may be not less than fifteen days after service of the transferee’s notice.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-06. No waiver by payee.
The requirements of this chapter may not be waived by any payee.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-07. Disputes decided under state law.
Any transfer agreement entered on or after the effective date of this chapter by a payee who resides in this state must provide that disputes under the transfer agreement, including any claim that the payee has breached the agreement, must be determined in and under the laws of this state. Such a transfer agreement may not authorize the transferee or any other party to confess judgment or consent to entry of judgment against the payee.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-08. Life-contingent payments not to be transferred — Exception.
A transfer of structured settlement payment rights may not extend to any payments that are life-contingent unless, before the date on which the payee signs the transfer agreement, the transferee has established and has agreed to maintain procedures reasonably satisfactory to the annuity issuer and the structured settlement obligor for periodically confirming the payee’s survival and giving the annuity issuer and the structured settlement obligor prompt written notice in the event of the payee’s death.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-09. No payee liability for failure to comply with chapter.
A payee who proposes to make a transfer of structured settlement payment rights may not incur any penalty, forfeit any application fee or other payment, or otherwise incur any liability to the proposed transferee or any assignee based on any failure of the transfer to satisfy the conditions of this chapter.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-10. Effect of chapter on existing laws and transfer agreements.
This chapter does not authorize any transfer of structured settlement payment rights in contravention of any law nor does this chapter imply that any transfer under a transfer agreement entered before August 1, 2009, is valid or invalid.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-11. Transferee solely responsible for certain requirements.
In any transfer of structured settlement payment rights, compliance with the requirements of section 32-03.4-02 and fulfillment of the conditions of section 32-03.4-03 are the sole responsibility of the transferee. Neither the structured settlement obligor nor the annuity issuer bears any responsibility for, or any liability arising from, noncompliance with those requirements or failure to fulfill those conditions.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-12. Penalty.
Any transferee that willfully violates this chapter is guilty of an infraction. A second or subsequent violation of this chapter is a class B misdemeanor.
Source:
S.L. 2009, ch. 286, § 1.
32-03.4-13. Applicability of chapter.
This chapter applies to any transfer of structured settlement payment rights under a transfer agreement entered after July 31, 2009. This chapter does not imply that any transfer under a transfer agreement reached before August 1, 2009, is either effective or ineffective.
Source:
S.L. 2009, ch. 286, § 1.
CHAPTER 32-04 Specific Relief
32-04-01. When specific relief given.
Specific relief may be given in the cases specified in this chapter and in no other cases.
Source:
Civ. C. 1877, § 1987; R.C. 1895, § 5017; R.C. 1899, § 5017; R.C. 1905, § 6602; C.L. 1913, § 7185; R.C. 1943, § 32-0401.
Derivation:
Cal. Civ. C., 3366.
Notes to Decisions
Remedy in Equity.
Specific performance of a contract is an equitable remedy and thus when a party asks for specific performance he is held to a higher standard than if he merely asks for money damages for breach of the contract. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).
Collateral References.
Specific Performance 2 et seq.
71 Am. Jur. 2d, Specific Performance, § 4 et seq.
81 C.J.S. Specific Performance, §§ 4 et seq.
32-04-02. How specific relief given.
Specific relief is given:
- By taking possession of a thing and delivering it to a claimant;
- By compelling a party to do that which ought to be done; or
- By declaring and determining the rights of parties, otherwise than by an award of damages.
Source:
Civ. C. 1877, § 1988; R.C. 1895, § 5018; R.C. 1899, § 5018; R.C. 1905, § 6603; C.L. 1913, § 7186; R.C. 1943, § 32-0402.
Derivation:
Cal. Civ. C., 3367.
32-04-03. Specific relief not given to enforce penal law.
Specific relief cannot be granted to enforce a penal law, except in case of nuisance, nor to enforce a penalty or forfeiture in any case.
Source:
Civ. C. 1877, § 1990; R.C. 1895, § 5020; R.C. 1899, § 5020; R.C. 1905, § 6605; C.L. 1913, § 7188; R.C. 1943, § 32-0403.
Derivation:
Cal. Civ. C., 3369.
32-04-04. Method of recovering real property.
A person entitled to specific real property by reason either of a perfected title, or of a claim to title which ought to be perfected, may recover the same either by a judgment for its possession to be executed by the sheriff, or by a judgment requiring the other party to perfect the title and to deliver possession of the property.
Source:
Civ. C. 1877, § 1991; R.C. 1895, § 5021; R.C. 1899, § 5021; R.C. 1905, § 6606; C.L. 1913, § 7189; R.C. 1943, § 32-0404.
Derivation:
Cal. Civ. C., 3375.
Notes to Decisions
Conveyance Ordered.
Trial court did not err in ordering specific performance of stipulations related to a partition action made in 1994 which conveyed interest in land given that the stipulations constituted a then present conveyance and not an agreement to convey in the future. Des Lacs Valley Land Corp. v. Herzig, 2001 ND 17, 621 N.W.2d 860, 2001 N.D. LEXIS 14 (N.D. 2001).
Collateral References.
Specific Performance 131.
71 Am. Jur. 2d, Specific Performance, §§ 198 et seq.
81A C.J.S. Specific Performance, §§ 164, 165.
Land contract conditioned upon purchaser’s securing loan, 5 A.L.R.2d 287.
Option executed simultaneously with mortgage for purchase of mortgaged property by mortgagee as subject of specific performance, 10 A.L.R.2d 231.
Change of conditions after execution of contract for sale of real property as affecting right to specific performance, 11 A.L.R.2d 390.
Nature of deed which may be required of vendor who is unable to convey title for which he has contracted, 13 A.L.R.2d 1462.
Personal covenant in recorded deed against grantee’s lessee or successor, specific performance of, 23 A.L.R.2d 520, 527.
Valuation: specific performance to determine valuation, where arbitration or appraisal has failed, under long term lease providing for appraisal of premises and fixing rental value at stated intervals, 26 A.L.R.2d 744.
Landlord’s breach of covenant to repair, specific performance as available to tenant under, 28 A.L.R.2d 446.
Parties to action for specific performance of contract for conveyance of realty after death of party to the contract, 43 A.L.R.2d 938.
Option for repurchase by vendor, specific performance of, 44 A.L.R.2d 342, 345.
Land sale contract providing that title must be satisfactory to purchaser, specific performance of, 47 A.L.R.2d 455, 461.
Indefiniteness as precluding specific performance of contract for sale or exchange of real estate failing to specify time for giving of possession, 56 A.L.R.2d 1272, 1274.
Uncertainty as to terms of mortgage or of accompanying note or bond contemplated by real estate sales contract as affecting right to specific performance, 60 A.L.R.2d 251.
Nature of action as one for specific performance of realty contract, 63 A.L.R.2d 456, 459.
Adequacy of consideration: necessity and sufficiency of allegation, in a suit for specific performance on a contract for the sale of land, as to the adequacy of the consideration or as to the fairness of the contract, 100 A.L.R.2d 551.
Price: requisite definiteness of price to be paid in event of exercise of option for purchase of property, 2 A.L.R.3d 701.
Subordination agreement: requisite definiteness of provision in contract for sale or lease of land, that vendor or landlord will subordinate his interest to permit other party to obtain financing, 26 A.L.R.3d 855.
Zoning or other public restrictions on the use of property as affecting rights and remedies of parties to contract for the sale thereof, 39 A.L.R.3d 362.
Payment: specific performance of land contract notwithstanding failure of vendee to make required payments on time, 55 A.L.R.3d 10.
32-04-05. Method of recovering personal property.
A person entitled to the immediate possession of specific personal property may recover the same in the manner provided by this title.
Source:
Civ. C. 1877, § 1992; R.C. 1895, § 5022; R.C. 1899, § 5022; R.C. 1905, § 6607; C.L. 1913, § 7190; R.C. 1943, § 32-0405.
Derivation:
Cal. Civ. C., 3379.
Collateral References.
Specific Performance 67-72.
71 Am. Jur. 2d, Specific Performance, §§ 198 et seq.
81 C.J.S. Specific Performance, §§ 80-85.
32-04-06. Specific delivery of personal property compellable.
Any person having the possession or control of a particular article of personal property of which such person is not the owner may be compelled specifically to deliver it to the person entitled to its immediate possession.
Source:
Civ. C. 1877, § 1993; R.C. 1895, § 5023; R.C. 1899, § 5023; R.C. 1905, § 6608; C.L. 1913, § 7191; R.C. 1943, § 32-0406.
Derivation:
Cal. Civ. C., 3380.
32-04-07. When specific performance compelled.
Except as otherwise provided in this chapter, the specific performance of an obligation may be compelled.
Source:
Civ. C. 1877, § 1994; R.C. 1895, § 5024; R.C. 1899, § 5024; R.C. 1905, § 6609; C.L. 1913, § 7192; R.C. 1943, § 32-0407.
Notes to Decisions
- Consideration and Mutual Assent.
- Contract to Convey Real Property.
- Contract to Devise Property.
- Contracts Containing Continuous Covenants.
Consideration and Mutual Assent.
Consideration and mutual assent in a contract are elements prerequisite to specific performance. Kaster v. Mason, 13 N.D. 107, 99 N.W. 1083, 1904 N.D. LEXIS 25 (N.D. 1904).
Contract to Convey Real Property.
Evidence that farm owner intended to sell his farming assets to his nephews for less than full market value to give them a “good deal” so they could “make it,” combined with the nephews’ modified written offer to buy the farm assets made the terms of the parties’ agreement sufficiently certain to support the trial court’s order specifically enforcing the contract. Kuntz v. Kuntz, 1999 ND 114, 595 N.W.2d 292, 1999 N.D. LEXIS 94 (N.D. 1999).
Contract to Devise Property.
Contract to devise property or to make a will may be enforced by specific performance. Kuhn v. Kuhn, 281 N.W.2d 230, 1979 N.D. LEXIS 270 (N.D. 1979).
Contracts Containing Continuous Covenants.
A court of equity will not decree specific performance of contracts containing continuous covenants the enforcement of which might require the constant supervision of a court. Kidd v. McGinnis, 1 N.D. 331, 48 N.W. 221, 1891 N.D. LEXIS 2 (N.D. 1891).
32-04-08. Remedy of specific performance must be mutual.
Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compelled specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation for any want of entire performance.
Source:
Civ. C. 1877, § 1995; R.C. 1895, § 5025; R.C. 1899, § 5025; R.C. 1905, § 6610; C.L. 1913, § 7193; R.C. 1943, § 32-0408.
Derivation:
Cal. Civ. C., 3386.
Notes to Decisions
- Application of Statute.
- Contract for Conveyance of Land.
- Declaration of Common Law Rule.
- Equitable Remedy.
- Oil and Gas Lease.
Application of Statute.
Under the statute, where there is no mutual remedy between the parties to a contract, an action for specific performance by a party thereto will not lie unless such party has performed the contract on his part or he can be compelled specifically to perform the same. Knudtson v. Robinson, 18 N.D. 12, 118 N.W. 1051, 1908 N.D. LEXIS 111 (N.D. 1908).
The rule of mutuality either as a rule of equity or under this section has no application to contracts that have been fully performed by one seeking specific performance. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).
Contract for Conveyance of Land.
Where the covenant to pay is independent, an action at law for the purchase price may be maintained, but where the time for the delivery of the deed has arrived before suit is brought for the price, the only action which on principle can be maintained by the vendor is one for specific performance. Shelly v. Mikkelson, 5 N.D. 22, 63 N.W. 210, 1895 N.D. LEXIS 7 (N.D. 1895).
Where a contract for the sale of realty required the purchaser to deliver specified quantities of wheat or the equivalent in money, an action for the purchase price would be the equivalent of an action for specific performance, so there was mutuality of remedy. Pederson v. Dibble, 12 N.D. 572, 98 N.W. 411, 1904 N.D. LEXIS 8 (N.D. 1904).
An action for specific performance may be maintained upon a contract for the conveyance of land which is signed only by the vendor. Beddow v. Flage, 22 N.D. 53, 132 N.W. 637, 1911 N.D. LEXIS 14 (N.D. 1911).
Specific performance of a land contract cannot be enforced unless both parties are bound by the contract. Ugland v. Kolb, 23 N.D. 158, 134 N.W. 879, 1912 N.D. LEXIS 63 (N.D. 1912).
A contract for the sale of real estate ordinarily imports mutuality. The vendor may be compelled by a decree of specific performance to convey according to the terms and conditions provided in the contract or the vendee may be compelled to perform specifically even though his performance consists only of the payment of the purchase price. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).
Purchasers who breached agreement for sale of grain elevator by stopping payment of their check were not in position to demand specific performance under this section. Zundel v. Farmers Union Grain Co., 79 N.W.2d 48, 1956 N.D. LEXIS 150 (N.D. 1956).
Lack of mutuality did not preclude a purchaser from seeking partial specific performance where the seller did not own all of the property included in the contract. Green v. Gustafson, 482 N.W.2d 842, 1992 N.D. LEXIS 56 (N.D. 1992).
Declaration of Common Law Rule.
This section is merely a declaration of the long-standing common law rule. Green v. Gustafson, 482 N.W.2d 842, 1992 N.D. LEXIS 56 (N.D. 1992).
Equitable Remedy.
Specific performance is an equitable remedy governed by equitable principles. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).
Oil and Gas Lease.
A contract to make an oil and gas lease, which may be terminated at the will of the lessee, is specifically enforceable if the contract contains important mutually enforceable provisions such as the payment of a substantial sum as consideration for making the lease and rental for the first rental period which are in themselves enforceable regardless of the surrender of the lease. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).
A party to a contract to execute an oil and gas lease cannot prevent performance by the opposite party and use that lack of performance as a basis for invoking this section as a defense to an action for specific performance. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).
Lack of mutuality of remedy in a proposed lease is not always fatal to the right to specifically enforce a contract to make such a lease. Alfson v. Anderson, 78 N.W.2d 693, 1956 N.D. LEXIS 145 (N.D. 1956).
Collateral References.
Specific Performance 6, 32.
71 Am. Jur. 2d, Specific Performance, §§ 24 et seq.
81 C.J.S. Specific Performance, §§ 8, 9.
Land contract conditioned upon purchaser’s securing loan, 5 A.L.R.2d 287.
Will or conveyance of property at death in consideration of support or services, mutuality as affecting specific performance of contract for, during promisor’s lifetime, 7 A.L.R.2d 1166, 1171.
Termination: specific performance of contract, other than lease or agreement therefor, or contract for services, terminable by one party but not the other, 8 A.L.R.2d 1208.
Comment note: Mutuality of remedy as essential to granting of specific performance, 22 A.L.R.2d 508.
Specific performance of land sale contract providing that title must be satisfactory to purchaser, 47 A.L.R.2d 455, 461.
Failure of vendee to make required payments on time, specific performance of land contract notwithstanding, 55 A.L.R.3d 10.
Law Reviews.
Specific Performance of Land Contracts in North Dakota, 26 Bar Briefs, State Bar Ass’n of N.D. 389 (1950).
32-04-09. Presumption as to relief for not transferring property.
It is to be presumed that the breach of an agreement to transfer real property cannot be relieved adequately by pecuniary compensation and that the breach of an agreement to transfer personal property can be thus relieved.
Source:
Civ. C. 1877, § 1996; R.C. 1895, § 5026; R.C. 1899, § 5026; R.C. 1905, § 6611; C.L. 1913, § 7194; R.C. 1943, § 32-0409.
Derivation:
Cal. Civ. C., 3387.
Notes to Decisions
Contract for Sale of Real Property.
While this section supports buyer’s right to specific performance of contract for sale of real property on the ground that monetary damages are presumed to be inadequate, no similar statutory presumption exists to support an action for specific performance by the seller of real property; therefore, sellers were not entitled to specific performance of contract for sale of real property where they failed to meet their burden of proving that the legal remedy for breach of the contract was inadequate. Wolf v. Anderson, 334 N.W.2d 212, 1983 N.D. LEXIS 283 (N.D. 1983).
Royalty Interest.
The trial court did not err in granting plaintiff, a corporation engaged in finding abandoned or marginally profitable oil and gas wells, specific performance of an overriding royalty interest in the wells, since a royalty interest is real property. Geostar Corp. v. Parkway Petroleum, 495 N.W.2d 61, 1993 N.D. LEXIS 12 (N.D. 1993).
Specific Performance.
District court erred in awarding damages instead of specific performance in a quiet title action where the presumption under N.D.C.C. § 32-04-09 placed the onus on the sellers to prove monetary damages were adequate once the purchasers showed the inadequacy of damages and pled for specific performance, and the district court did not apply that presumption. Dale Exploration, LLC v. Hiepler, 2018 ND 271, 920 N.W.2d 750, 2018 N.D. LEXIS 281 (N.D. 2018).
32-04-10. Specific performance compelled though contract signed only by one.
A party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed or offers to perform it on the latter’s part and the case is proper otherwise for enforcing specific performance.
Source:
Civ. C. 1877, § 1997; R.C. 1895, § 5027; R.C. 1899, § 5027; R.C. 1905, § 6612; C.L. 1913, § 7195; R.C. 1943, § 32-0410.
Derivation:
Cal. Civ. C., 3388.
Notes to Decisions
Contract to Convey Land.
An action for specific performance may be maintained upon a contract for the conveyance of land which is signed only by the vendor. Beddow v. Flage, 22 N.D. 53, 132 N.W. 637, 1911 N.D. LEXIS 14 (N.D. 1911).
32-04-11. Contracts compelled though penalty imposed or damages liquidated.
A contract otherwise proper to be enforced specifically may be thus enforced, though a penalty is imposed, or the damages are liquidated, for its breach, and the party in default is willing to pay the same.
Source:
Civ. C. 1877, § 1998; R.C. 1895, § 5028; R.C. 1899, § 5028; R.C. 1905, § 6613; C.L. 1913, § 7196; R.C. 1943, § 32-0411.
Derivation:
Cal. Civ. C., 3389.
Collateral References.
Specific Performance 58.
71 Am. Jur. 2d, Specific Performance, §§ 73-76.
81 C.J.S. Specific Performance, § 39.
32-04-12. What obligations cannot be enforced specifically.
The following obligations cannot be enforced specifically:
- An obligation to render personal service.
- An obligation to employ another in personal service.
- An agreement to perform an act that the party has no power lawfully to perform when required to do so.
- An agreement to procure the act or consent of the spouse of the contracting party or of any other third person.
- An agreement, the terms of which are not sufficiently certain to make the precise act that is to be done clearly ascertainable.
Source:
Civ. C. 1877, § 1999; R.C. 1895, § 5029; R.C. 1899, § 5029; R.C. 1905, § 6614; C.L. 1913, § 7197; R.C. 1943, § 32-0412; S.L. 1983, ch. 172, § 40; 1985, ch. 373, § 1.
Notes to Decisions
- Arbitration Agreements.
- Certainty of Terms.
- Employment Contracts.
- Injunction.
- Teacher’s Contract.
- Telephone Service.
Arbitration Agreements.
Binding arbitration is not against public policy, and in the absence of fraud or deception, an agreement between a school board and a teacher’s association to submit certain disputes to binding arbitration is valid. West Fargo Pub. Sch. Dist. v. West Fargo Educ. Ass'n, 259 N.W.2d 612, 1977 N.D. LEXIS 215 (N.D. 1977).
Contractual provision between city and contractor providing for specific enforcement of agreement to arbitrate was unenforceable. Wagner Bros. v. Williston, 335 N.W.2d 328, 1983 N.D. LEXIS 341 (N.D. 1983).
Certainty of Terms.
Specific performance must be denied when the terms of a contract are not sufficiently certain to make the act which is to be done clearly ascertainable. Beebe v. Hanson, 40 N.D. 559, 169 N.W. 31, 1918 N.D. LEXIS 95 (N.D. 1918).
Purchasers were not entitled to court-ordered specific performance of purchase agreement for sale of apartment building, which was held not to be sufficiently certain nor just and reasonable, where seller’s interest was to be subordinated to a lender’s interest. Linderkamp v. Hoffman, 1997 ND 64, 562 N.W.2d 734, 1997 N.D. LEXIS 79 (N.D. 1997).
Employment Contracts.
Reinstatement is not an enforceable remedy because it constitutes an obligation to employ another in personal service. Dimond v. State, 1999 ND 228, 603 N.W.2d 66, 1999 N.D. LEXIS 242 (N.D. 1999).
Injunction.
A final injunction, when authorized, may be granted to restrain the breach of a contract unless it is one the performance of which could not be specifically enforced. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).
Teacher’s Contract.
A teacher cannot specifically enforce a contract of employment. Henley v. Fingal Pub. Sch. Dist., 219 N.W.2d 106, 1974 N.D. LEXIS 210 (N.D. 1974).
Teacher employed by a private institution has no right to specific enforcement or injunctive relief to obtain reinstatement of her teaching position for alleged wrongful termination or to prevent a breach of her employment contract. Schauer v. Jamestown College, 323 N.W.2d 114, 1982 N.D. LEXIS 369 (N.D. 1982).
Telephone Service.
This section does not apply to a proceeding to enjoin the removal of telephones and discontinuance of service in certain railway depots. Great N. Ry. v. Sheyenne Tel. Co., 27 N.D. 256, 145 N.W. 1062, 1914 N.D. LEXIS 44 (N.D. 1914).
Collateral References.
Specific Performance 14, 27-30, 73, 80.
81 C.J.S. Specific Performance, §§ 28-31, 45, 63, 71, 76.
Financing: provision making purchaser’s obligation under land contract conditional upon securing loan, 5 A.L.R.2d 287.
Conveyance or devise of property at death in consideration of services, specific performance of contract for, during promisor’s lifetime, 7 A.L.R.2d 1166, 1171.
Compromise and settlement agreement, 48 A.L.R.2d 1211.
Indefiniteness as precluding specific performance of contract for sale or exchange of real estate failing to specify time for giving of possession, 56 A.L.R.2d 1272, 1274.
Uncertainty as to terms of mortgage or of accompanying note or bond contemplated by real estate sales contract as affecting right to specific performance, 60 A.L.R.2d 251.
Arbitrators’ power to award injunction or specific performance, 70 A.L.R.2d 1055.
Price: requisite definiteness of price to be paid in event of exercise of option for purchase of property, 2 A.L.R.3d 701.
Subordination agreement: requisite definiteness of provision in contract for sale or lease of land, that vendor or landlord will subordinate his interest to permit other party to obtain financing, 26 A.L.R.3d 855.
Law Reviews.
Arbitration of Claims of Contract Unconscionability, 56 N.D. L. Rev. 7 (1980).
32-04-13. When specific performance cannot be enforced against one.
Specific performance cannot be enforced against a party to a contract in any of the following cases:
- If the party has not received an adequate consideration for the contract.
- If it is not as to that party just and reasonable.
- If such party’s assent was obtained by misrepresentation, concealment, circumvention, or unfair practice of any party to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled.
- If the party’s assent was given under the influence of mistake, misapprehension, or surprise, except that when the contract provides for compensation in case of mistake, a mistake within the scope of such provision may be compensated for and the contract specifically enforced in other respects, if proper to be so enforced.
Source:
Civ. C. 1877, § 2000; R.C. 1895, § 5030; R.C. 1899, § 5030; R.C. 1905, § 6615; C.L. 1913, § 7198; R.C. 1943, § 32-0413.
Derivation:
Cal. Civ. C., 3391.
Notes to Decisions
- Discretion of Trial Court.
- Inadequate Consideration.
- Misrepresentation.
- Not Just and Reasonable.
- Terms of Contract Uncertain.
- Undue Influence.
Discretion of Trial Court.
The granting of specific performance rests in the sound discretion of the trial court and the supreme court will not interfere with that discretion unless shown it was abused. Harrington v. Harrington, 365 N.W.2d 552, 1985 N.D. LEXIS 288 (N.D. 1985).
Although it had not cited N.D.C.C. § 32-04-13 in granting the brother specific performance, the district court had discussed the case law in analyzing the undisputed facts in the instant case. Molbert v. Kornkven, 2018 ND 120, 910 N.W.2d 888, 2018 N.D. LEXIS 114 (N.D. 2018).
Inadequate Consideration.
Specific performance will not be enforced unless the contract is just and reasonable and made for an adequate consideration. Carey v. Campbell, 45 N.D. 273, 177 N.W. 372, 1920 N.D. LEXIS 121 (N.D. 1920).
Specific performance of an alleged option contract for the sale of land should have been denied where there was no consideration for the contract. Streeter v. Archer, 46 N.D. 251, 176 N.W. 826, 1920 N.D. LEXIS 2 (N.D. 1920).
Inadequacy of consideration to warrant a denial of specific performance of a contract must be determined upon a consideration of all the circumstances of the case and it must appear that the transaction is not fair and reasonable. Arhart v. Thompson, 75 N.D. 569, 31 N.W.2d 56, 1948 N.D. LEXIS 82 (N.D. 1948).
Mere inadequacy of consideration does not justify a denial of specific performance in the absence of unfairness or overreaching. Harrington v. Harrington, 365 N.W.2d 552, 1985 N.D. LEXIS 288 (N.D. 1985).
Generally, specific performance will be denied only when the inadequacy of consideration is such as to demonstrate some gross imposition, undue influence, or shocks the conscience. Harrington v. Harrington, 365 N.W.2d 552, 1985 N.D. LEXIS 288 (N.D. 1985).
Misrepresentation.
Because credible testimony supported the family’s position that the buyers misrepresented the disputed contract to the family as a right of first refusal, the buyers were not entitled to specific performance under N.D.C.C. § 32-04-13 due to their misrepresentations. Landers v. Biwer, 2006 ND 109, 714 N.W.2d 476, 2006 N.D. LEXIS 111 (N.D. 2006).
Not Just and Reasonable.
Purchasers were not entitled to court-ordered specific performance of purchase agreement for sale of apartment building, which was held not to be sufficiently certain nor just and reasonable, where seller’s interest was to be subordinated to a lender’s interest. Linderkamp v. Hoffman, 1997 ND 64, 562 N.W.2d 734, 1997 N.D. LEXIS 79 (N.D. 1997).
Terms of Contract Uncertain.
Specific performance must be denied when the terms of a contract are not sufficiently certain to make the act which is to be done clearly ascertainable. Beebe v. Hanson, 40 N.D. 559, 169 N.W. 31, 1918 N.D. LEXIS 95 (N.D. 1918).
Undue Influence.
Undue influence is ground for denial of specific performance; and the existence of undue influence may be shown by 1. a person who can be influenced; 2. improper influence exerted; and 3. submission to the overmastering effect of such conduct. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).
Collateral References.
Specific Performance 16, 48-54, 87-89, 97.
81 C.J.S. Specific Performance, §§ 35, 36, 40-42, 77, 78, 82-99.
Misrepresentation as to matters other than quantity or title, specific performance with abatement from purchase price for, 7 A.L.R.2d 1331.
Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance, 11 A.L.R.2d 390.
Allegations: necessity and sufficiency of allegation, in a suit for specific performance on a contract for the sale of land, as to the adequacy of the consideration or as to the fairness of the contract, 100 A.L.R.2d 551.
Failure of vendee to make required payments on time, specific performance of land contract notwithstanding, 55 A.L.R.3d 10.
32-04-14. When specific performance cannot be enforced in favor of one.
Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on such party’s part to the obligation of the other party, except when such party’s failure to perform is only partial and either entirely immaterial or capable of being fully compensated, in which case specific performance may be compelled upon full compensation being made for the default.
Source:
Civ. C. 1877, § 2001; R.C. 1895, § 5031; R.C. 1899, § 5031; R.C. 1905, § 6616; C.L. 1913, § 7199; R.C. 1943, § 32-0414.
Derivation:
Cal. Civ. C., 3392.
Notes to Decisions
Abandonment of Contract.
Equity will not extend the extraordinary relief afforded by specific performance to a vendee who has been grossly negligent of his rights or has abandoned his contract. Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808, 1929 N.D. LEXIS 315 (N.D. 1929), overruled, Ziebarth v. Kalenze, 238 N.W.2d 261, 1976 N.D. LEXIS 185 (N.D. 1976).
Contract to Convey Land.
Equity, before specifically enforcing a contract to convey real estate, will insist on showing the utmost good faith on the part of the purchaser. Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808, 1929 N.D. LEXIS 315 (N.D. 1929), overruled, Ziebarth v. Kalenze, 238 N.W.2d 261, 1976 N.D. LEXIS 185 (N.D. 1976).
Option to Purchase Land.
Plaintiff tenant was entitled to specific performance of contract giving him an option to purchase land upon tender of all sums coming to the defendant landlord, including damages sustained by defendant due to plaintiff’s noncompliance with all of the contract provisions. Kern v. Kelner, 77 N.D. 948, 48 N.W.2d 90, 1951 N.D. LEXIS 125 (N.D. 1951).
Part Performance.
As a general rule, specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party; but when his failure to perform is only partial and capable of being fully compensated, specific performance may be compelled upon full compensation being made for the default. Kern v. Kelner, 77 N.D. 948, 48 N.W.2d 90, 1951 N.D. LEXIS 125 (N.D. 1951).
Collateral References.
Specific Performance 10, 13, 40-47, 94.
81 C.J.S. Specific Performance, §§ 10, 13, 14, 50-54, 82-99.
Change of conditions after execution of contract or option for sale of real property as affecting right to specific performance, 11 A.L.R.2d 390.
Futility as affecting specific performance of agreement, or provision thereof, involving partnership at will, 70 A.L.R.2d 618.
Failure of vendee to make required payments on time, specific performance of land contract notwithstanding, 55 A.L.R.3d 10.
32-04-15. Effect of imperfect title.
An agreement for the sale of property cannot be enforced specifically in favor of a seller who cannot give to the buyer a title free from reasonable doubt.
Source:
Civ. C. 1877, § 2002; R.C. 1895, § 5032; R.C. 1899, § 5032; R.C. 1905, § 6617; C.L. 1913, § 7200; R.C. 1943, § 32-0415.
Derivation:
Cal. Civ. C., 3394.
Notes to Decisions
Name of Grantee Omitted from Deed.
A contract for the sale of land is not enforceable by specific performance where title is not reasonably free from doubt. Brugman v. Charlson, 44 N.D. 114, 171 N.W. 882, 1919 N.D. LEXIS 193 (N.D. 1919).
Nonmerchantable Title.
A purchaser of land cannot be compelled to accept a deed if it appears that the title is not merchantable. Easton v. Lockhart, 10 N.D. 181, 86 N.W. 697, 1901 N.D. LEXIS 19 (N.D. 1901).
Collateral References.
Specific Performance 95.
81 C.J.S. Specific Performance, § 99.
Nature of deed which may be required of vendor who was unable to convey title for which he has contracted, 13 A.L.R.2d 1462.
Satisfactory to purchaser, land sale contract providing that title must be, 47 A.L.R.2d 455, 461.
Zoning or rezoning of property, provision making option contract subject to, 76 A.L.R.2d 1195, 1196.
Possibility of issue extinct, doctrine as to, as affecting validity of title, 98 A.L.R.2d 1285.
Marketability of title as affected by lien dischargeable only out of funds to be received from purchaser at closing, 53 A.L.R.3d 678.
32-04-16. When enforced against subsequent holder.
Whenever an obligation in respect to real property would be enforced specifically against a particular person, it may be enforced in like manner against any other person claiming under that particular person by a title created subsequently to the obligation, except a purchaser or encumbrancer in good faith and for value, and except also that any such person may exonerate himself or herself by conveying all such person’s estate to the person entitled to enforce the obligation.
Source:
Civ. C. 1877, § 2003; R.C. 1895, § 5033; R.C. 1899, § 5033; R.C. 1905, § 6618; C.L. 1913, § 7201; R.C. 1943, § 32-0416.
Derivation:
Cal. Civ. C., 3395.
Notes to Decisions
Preexisting Royalty Interest.
Where an energy company took an interest in oil wells with knowledge of an overriding royalty interest, it was not a good faith purchaser for value; accordingly, the overriding interest could be specifically enforced. Geostar Corp. v. Parkway Petroleum, 495 N.W.2d 61, 1993 N.D. LEXIS 12 (N.D. 1993).
Purchaser in Good Faith.
An obligation regarding real property may be enforced against a subsequent purchaser, except a purchaser in good faith for value. Stuart v. Stammen, 1999 ND 38, 590 N.W.2d 224, 1999 N.D. LEXIS 39 (N.D. 1999).
Farmland purchaser who had actual knowledge that a third party held a right of first refusal to purchase the property, and made no inquiry as to whether the other party wanted to exercise his right, was not a good faith purchaser. Stuart v. Stammen, 1999 ND 38, 590 N.W.2d 224, 1999 N.D. LEXIS 39 (N.D. 1999).
Collateral References.
Specific Performance 18-24.
71 Am. Jur. 2d, Specific Performance, §§ 190, 191.
81 C.J.S. Specific Performance, §§ 22-26.
Parties to action for specific performance of contract for conveyance of realty after death of party to the contract, 43 A.L.R.2d 938.
32-04-17. Revision of contract for fraud or mistake.
When, through fraud or mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved so as to express that intention so far as it can be done without prejudice to rights acquired by third persons in good faith and for value.
Source:
Civ. C. 1877, § 2004; R.C. 1895, § 5034; R.C. 1899, § 5034; R.C. 1905, § 6619; C.L. 1913, § 7202; R.C. 1943, § 32-0417.
Derivation:
Cal. Civ. C., 3399.
Cross-References.
Reformation of contracts to express real meaning of parties, see N.D.C.C. § 9-07-05.
Notes to Decisions
- Burden of Proof.
- Reformation or Rescission.
- Consequences of Mistake.
- Failure to Read Instrument Before Signing.
- Good Faith Purchaser.
- Mistake.
- In General.
- Parol Evidence.
- Parties to Action.
- Pleaded Specifically.
- Purchaser with Constructive Notice of Claim.
- Reformation or Rescission.
- Settlement Agreement
- Statute of Limitations.
Burden of Proof.
Burden of proof rests on the party who seeks reformation on the basis of mutual mistake to establish such mutual mistake by clear, satisfactory, specific and convincing evidence. Ell v. Ell, 295 N.W.2d 143, 1980 N.D. LEXIS 276 (N.D. 1980).
Party seeking reformation has burden of proving that written instrument does not accurately state what parties intended with evidence that is clear, satisfactory, specific, and convincing that there was a mutual mistake of fact. Wehner v. Schroeder, 354 N.W.2d 674, 1984 N.D. LEXIS 362 (N.D. 1984).
Reformation or Rescission.
District court did not err in applying the statute because any error in deciding corporations’ failed to prove a reformation claim that could have been included in the complaint and was abandoned was harmless; the complaint requested reformation of a plat or reformation of redemption agreements, and at trial, the corporations’ stated they were not asking to reform a contract and not claiming the redemption agreements were invalid but were only trying to determine what a partnership owned. Galvanizers, Inc. v. Kautzman, 2021 ND 169, 965 N.W.2d 51, 2021 N.D. LEXIS 172 (N.D. 2021).
Consequences of Mistake.
When taxpayer’s retirement contracts were mistakenly used as collateral for a personal loan, the amounts used to pay the loan were taxed as income; taxpayer, who did not challenge the mistake or address the loan agreement 13 years earlier, could not avoid its later consequences. 277 F. Supp. 2d 1040.
Failure to Read Instrument Before Signing.
Grantors’ failure to read warranty deed prepared by an attorney before signing it did not bar them from being granted reformation to correct erroneous omission of a mineral reservation from deed where grantors’ negligence in failing to read deed did not constitute a failure to act in good faith or in accordance with reasonable standards of fair dealing. Wehner v. Schroeder, 354 N.W.2d 674, 1984 N.D. LEXIS 362 (N.D. 1984).
Good Faith Purchaser.
Party was not a good faith purchaser for value of real property, where it was put on notice about serious questions as to status of property’s title by recorded documents. City of Fargo v. D.T.L. Props., 1997 ND 109, 564 N.W.2d 274, 1997 N.D. LEXIS 103 (N.D. 1997).
Trial court erred in awarding summary judgment to plaintiff in a quiet title action against defendants because defendants did not have constructive notice of a mistake in a 1992 deed that resulted in a discrepancy in the placement of a legal boundary between the parties’ parcels of land; defendants were good faith purchasers. Farmers Union Oil Co. v. Smetana, 2009 ND 74, 764 N.W.2d 665, 2009 N.D. LEXIS 81 (N.D. 2009).
In a dispute over an oil and gas lease, it was error for a trial court to grant summary judgment upon concluding, as a matter of law, that an individual was not a bona fide purchaser, due to having constructive notice of another’s claim when recording the lease, because (1) whether the individual had notice was a question of fact, (2) deciding an issue on summary judgment was not appropriate if the court had to draw inferences or make findings on disputed facts, (3) although two corporations argued the facts were not disputed, the corporations did not agree on the inferences that could be drawn from the evidence, (4) more than one inference could reasonably be drawn from the evidence and findings of fact were required, which was not appropriate in a summary judgment proceeding, (5) whether the individual acquired property rights in good faith and for value required findings of fact about the events surrounding a transaction, and (6) a factual dispute existed about whether the individual had constructive notice when the individual acquired rights under the lease. Northern Oil & Gas, Inc. v. Creighton, 2013 ND 73, 830 N.W.2d 556, 2013 N.D. LEXIS 73 (N.D. 2013).
Mistake.
District court properly found a mutual mistake in transferring the mineral estate given, inter alia, the trust agreement's statement that the property was to be divided equally between the son and his sibling. Dixon v. Dixon, 2017 ND 174, 898 N.W.2d 706, 2017 N.D. LEXIS 175 (N.D. 2017).
In General.
Two companies that acquired oil and gas interests that belonged to a third company (“debtor”) while the debtor was in Chapter 7 bankruptcy were not barred by N.D.C.C. § 28-01-15 from seeking reformation of documents that transferred the debtor's interests because they discovered the fact that there were problems with the documents less than ten years before they sought reformation, and the court was allowed under N.D.C.C. § 9-06-07 to consider extrinsic evidence to determine the intent of the bankruptcy trustee when he sold the debtor's property, and to order reformation of the documents pursuant to N.D.C.C. § 32-04-17 to the extent they did not accurately convey interests the trustee intended to sell. 2015 Bankr. LEXIS 883.
—In General.
N.D.C.C. § 9-03-13 defines mistake for purposes of this section. Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).
In a case in which a purchaser sued sellers for reformation of a warranty deed under N.D.C.C. § 32-04-17, the trial court did not err in granting the sellers summary judgment on the purchaser’s claim for reformation based upon mistake; the written deed conformed to the sellers’ version of the facts and did not support a claim that both parties intended to say something different from what was said in the deed. Heart River Partners v. Goetzfried, 2005 ND 149, 703 N.W.2d 330, 2005 N.D. LEXIS 186 (N.D. 2005).
District court properly focused on the decedent’s intent when he executed the quitclaim deed rather than the intent of the parties to the contract for deed, and because the decedent did not include a reservation of mineral interests in the deed, the law required the district court to presume that was his intention; the son did not prove by clear and convincing evidence that a mutual mistake caused the decedent to execute the deed without the reservation of mineral interests. Spitzer v. Bartelson, 2009 ND 179, 773 N.W.2d 798, 2009 N.D. LEXIS 191 (N.D. 2009).
—Of Law.
Where a mistake of law results in the parties’ obvious failure to articulate their true and discoverable intent, reformation is available if justice and common sense require it; however, not all mistakes of law will justify reformation of a contract as ignorance of law must be distinguished, from misapprehension of law with which both parties are familiar. Hovden v. Lind, 301 N.W.2d 374, 1981 N.D. LEXIS 262 (N.D. 1981).
Dismissal of a grantor’s complaint seeking reformation of a deed was appropriate because a reservation in the deed expressly providing the grantor with the right to hunt on any or all the premises was a severance of hunting rights from the surface rights that was prohibited by statute. Furthermore, the complaint clearly alleged a mistake of law in the context of ignorance of the law, not a misapprehension of the law, for which the remedy of reformation was not available as a matter of law. Hauer v. Zerr, 2020 ND 16, 937 N.W.2d 508, 2020 N.D. LEXIS 17 (N.D. 2020).
—Unilateral.
A plaintiff failed to support a unilateral mistake under this section because there was no misrepresentation by defendant and because defendant had no prior knowledge of the mistake claimed by plaintiff. Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).
Parol Evidence.
Parol evidence is admissible in an action for reformation of a contract to establish fraud or mutual mistake as well as to show the true intentions of the parties. Ell v. Ell, 295 N.W.2d 143, 1980 N.D. LEXIS 276 (N.D. 1980).
In a reformation action, any parol evidence which tends to show a mistake or the parties’ true intent is admissible. City of Fargo v. D.T.L. Props., 1997 ND 109, 564 N.W.2d 274, 1997 N.D. LEXIS 103 (N.D. 1997).
Summary judgment was not appropriate on the grantors’ claim for reformation of a deed as there was parol evidence supporting the inference that a mistake was made; the deed was signed when the flowage easement had not yet been recorded, a mistake the grantee knew about, and there was also evidence that the grantee had told his real estate agent not to say anything about the flowage easement during the closing. Anderson v. Selby, 2005 ND 126, 700 N.W.2d 696, 2005 N.D. LEXIS 162 (N.D. 2005).
District court properly quieted title in favor of appellees because it did not err in considering extrinsic evidence to determine whether there was a mutual mistake. Goodall v. Monson, 2017 ND 92, 893 N.W.2d 774, 2017 N.D. LEXIS 93 (N.D. 2017).
Parties to Action.
Reformation of a written instrument is allowed as against original parties to instrument and all those who claim under said parties in privity, with exception of bona fide purchasers or encumbrancers for value and without notice. Wehner v. Schroeder, 354 N.W.2d 674, 1984 N.D. LEXIS 362 (N.D. 1984).
Pleaded Specifically.
Facts establishing fraud or mistake upon which reformation might be based must be specifically pleaded. Evangelical Lutheran Church v. Stanolind Oil & Gas Co., 251 F.2d 412, 1958 U.S. App. LEXIS 5386 (8th Cir. N.D. 1958).
Purchaser with Constructive Notice of Claim.
Purchaser of property had constructive notice of possible claim by plaintiff regarding mineral interests, and was therefore not a good faith purchaser for value, where a search of title abstract should have disclosed discrepancy over mineral interests between a recorded contract for deed and a recorded warranty deed; therefore, good faith purchaser provision of this section did not bar plaintiff from seeking reformation of recorded instruments. Wehner v. Schroeder, 335 N.W.2d 563, 1983 N.D. LEXIS 340 (N.D. 1983).
—Question of Fact.
A factual dispute existed as to whether partners in partnership had notice of facts which would provoke a prudent person to make further inquiry about its rent obligation under ground lease purchased by partnership, so that district court erred in concluding, as a matter of law, that partnership had constructive notice of the mutual mistake in lease and, therefore, was not a good faith purchaser. Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 1996 N.D. LEXIS 214 (N.D. 1996).
Reformation or Rescission.
Where a mistake is made in a contract, equity will either reform or rescind the contract as circumstances may require. Benesh v. Travelers' Ins. Co., 14 N.D. 39, 103 N.W. 405, 1905 N.D. LEXIS 17 (N.D. 1905).
While fraud is a ground for reformation of written instruments, fraud perpetrated to induce a party to enter into the agreement itself is not a ground for its reformation, but is a ground for its rescission. Striegel v. Dakota Hills, 365 N.W.2d 491, 1985 N.D. LEXIS 282 (N.D. 1985).
The trial court had no authority to order reamortization of the loan under the guise of reformation, especially where the borrower had not asserted any grounds to support reformation of a written instrument. Federal Land Bank v. Overboe, 404 N.W.2d 445, 1987 N.D. LEXIS 296 (N.D. 1987).
A ten-acre shortfall in a deed was a disadvantage to defendant, not an advantage; therefore, it was not the kind of mistake which warranted reformation for plaintiff, the grantor, as “a party aggrieved.” Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).
Where party affirmed contract and continued to rely on some of its provisions, his counterclaim for fraud was properly dismissed by summary judgment, because fraud perpetrated to induce a party to enter into the agreement is not a ground for its reformation, but is a ground for rescission, and the party did not seek rescission. Earthworks v. Sehn, 553 N.W.2d 490, 1996 N.D. LEXIS 205 (N.D. 1996).
District court properly granted summary judgment under Fed.R.Civ.P. 56 in favor of the United States in a taxpayer’s action seeking a refund of taxes paid in response to the Internal Revenue Service’s (IRS) assessment of a tax underpayment under 26 USCS § 72(p)(1); although the taxpayer claimed that a collateral assignment of annuity contracts was void because it was the product of mutual mistake on behalf of the taxpayer and a bank, the IRS properly treated the assignment as a taxable event based on the realities of the transaction; the taxpayer never challenged the legality of the assignment through proceedings authorized by N.D.C.C. §§ 32-04-17 to 32-04-22, and the taxpayer enjoyed the benefits of using the assignment as collateral for a loan. 366 F.3d 622.
District court did not abuse its discretion in concluding that the relatives’ proposed amended complaint for reformation was futile, N.D.R.Civ.P. 15(a), as they did not present sufficient evidence to support a reformation claim, N.D.C.C. § 32-04-17; the heirs’ summary judgment motion was properly granted as the relatives failed to demonstrate the existence of a disputed material fact. Johnson v. Hovland, 2011 ND 64, 795 N.W.2d 294, 2011 N.D. LEXIS 44 (N.D. 2011).
When appellant grantors claimed an interest in scoria under the reservation language in a warranty deed, the district court did not abuse its discretion in denying appellants’ motion to amend their complaint to assert a cause of action for reformation of the warranty deed under N.D.C.C. § 32-04-17 because the proposed amendment would be futile. Appellants failed to provide substantial evidence of the parties’ mutual intention to reserve interest in scoria. George v. Veeder, 2012 ND 186, 820 N.W.2d 731, 2012 N.D. LEXIS 189 (N.D. 2012).
District court did not err in granting summary judgment dismissing the relatives’ counterclaim for reformation and in quieting title to the minerals in the family; the proof offered by the relatives in support of their reformation claim fell short of the clear, satisfactory, specific and convincing evidence they needed in order to show that the parties to the documents in question intended to say something different from what was actually said in those documents. Arndt v. Maki, 2012 ND 55, 813 N.W.2d 564, 2012 N.D. LEXIS 53 (N.D. 2012).
District court did not err in reforming a warranty deed under and quieting title in the disputed land to the buyers because, while the original owner testified she did not intend to convey land below the water's edge of a lake to the intervening owners, circumstantial evidence in the record--including listing agreements, advertisements, and the testimony of the property surveyor and the attorney who drafted the deeds--supported a contrary finding. Freidig v. Weed, 2015 ND 215, 868 N.W.2d 546, 2015 N.D. LEXIS 223 (N.D. 2015).
District court did not err in determining the ownership of the property at issue because its findings that an estate's failed to meet its burden of proving fraud or mistake were not clearly erroneous where the primary purpose of the estate's action was to reform a deed and determine ownership of property the estate alleged it owned, the statute of limitations was not applicable to the estate's quiet title and reformation claim, the estate's appellate brief did not attack the district court's findings of fact on fraud, and the evidence did not establish whether the son and the father's estate intended to change the personal representative's deed or whether the deed was fraudulently or mistakenly altered. Vaage v. State (In re Estate of Vaage), 2016 ND 32, 875 N.W.2d 527, 2016 N.D. LEXIS 22 (N.D. 2016).
District court properly reformed the mineral deed naming only one brother as the grantee where it credited the non-named brother's testimony that a mutual mistake was made, and the deed's reference to joint tenants when only one grantee was named was an obvious error that put the purchasers on inquiry under N.D.C.C. § 1-01-25, thereby depriving them of good faith purchaser status. Fredericks v. Fredericks, 2016 ND 234, 888 N.W.2d 177, 2016 N.D. LEXIS 235 (N.D. 2016).
District court's findings supporting reformation of a deed were not clearly erroneous because there was clear evidence the grantors intended to transfer 508.26 mineral acres rather than the fractional interest as shown on the deed; the contract and receipt received as evidence contained language to show that the intent of parties to the contract was to transfer “an undivided 508.26 mineral acres” in the real estate later described in the deed. Goodall v. Monson, 2017 ND 92, 893 N.W.2d 774, 2017 N.D. LEXIS 93 (N.D. 2017).
District court did not err in denying a rural water district reformation of two leases on land because there was no mutual mistake in the drafting of leases; the parties engaged in a mutually negotiated, arms-length, commercial transaction, and the district court weighed the evidence, found the commercial lease contracts clear and unambiguous, and found the district did not meet its burden of clear and convincing evidence for reformation. Motter v. Traill Rural Water Dist., 2017 ND 267, 903 N.W.2d 725, 2017 N.D. LEXIS 276 (N.D. 2017).
In an appeal from a judgment dismissing plaintiffs’ action to reform warranty deeds and quiet title in themselves to certain property, the Supreme Court could not determine whether the district court correctly applied the law. In the absence of any correct statement of how the law applied to this case, the Supreme Court was compelled to remand the case to the district court. Schindler v. Wageman, 2019 ND 41, 923 N.W.2d 507, 2019 N.D. LEXIS 49 (N.D. 2019).
Settlement Agreement
Trial court did not abuse its discretion in refusing to reform parties’ settlement agreement in a class action suit because the calculation of the award, and the inclusion of a specific number in the denominator of the settlement formula used to determine payments to individual claimants signaled intense negotiations and was deliberate, not a mistake; the number used in the calculations was based on the best information available at the time and the parties’ correspondence evidenced their knowledge that the number was an approximation and could be higher or lower than what was inserted in the formula. Ritter, Laber & Assocs. v. Koch Oil, Inc., 2007 ND 163, 740 N.W.2d 67, 2007 N.D. LEXIS 168 (N.D. 2007).
Statute of Limitations.
A reformation of contract action on the basis of mutual mistake accrues, and the statute of limitations begins to run, not at the time the instrument in question is executed, but at the time the facts which constitute the mistake and form the basis for reformation have been, or in the exercise of reasonable diligence should have been, discovered by the party applying for relief. Ell v. Ell, 295 N.W.2d 143, 1980 N.D. LEXIS 276 (N.D. 1980).
Collateral References.
Reformation of Instruments 15-21.
66 Am. Jur. 2d, Reformation of Instruments, §§ 11-27.
76 C.J.S. Reformation of Instruments, §§ 28-46.
Statute of limitations governing action to reform instrument, 36 A.L.R.2d 687.
Third persons, right to reformation of contract or instrument as affected by intervening rights of, 79 A.L.R.2d 1180.
Negligence in executing contract as affecting right to have it reformed, 81 A.L.R.2d 7.
32-04-18. Intention to make equitable agreement presumed.
For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement.
Source:
Civ. C. 1877, § 2005; R.C. 1895, § 5035; R.C. 1899, § 5035; R.C. 1905, § 6620; C.L. 1913, § 7203; R.C. 1943, § 32-0418.
Derivation:
Cal. Civ. C., 3400.
32-04-19. Court may inquire what instrument was intended to mean.
In revising a written instrument, the court may inquire what the instrument was intended to mean and what were intended to be its legal consequences, and it is not confined to an inquiry as to what the language of the instrument was intended to be.
Source:
Civ. C. 1877, § 2006; R.C. 1895, § 5036; R.C. 1899, § 5036; R.C. 1905, § 6621; C.L. 1913, § 7204; R.C. 1943, § 32-0419.
Derivation:
Cal. Civ. C., 3401.
Notes to Decisions
Reformation.
Dismissal of a grantor’s complaint seeking reformation of a deed was appropriate because a reservation in the deed expressly providing the grantor with the right to hunt on any or all the premises was a severance of hunting rights from the surface rights that was prohibited by statute. Furthermore, the complaint clearly alleged a mistake of law in the context of ignorance of the law, not a misapprehension of the law, for which the remedy of reformation was not available as a matter of law. Hauer v. Zerr, 2020 ND 16, 937 N.W.2d 508, 2020 N.D. LEXIS 17 (N.D. 2020).
32-04-20. Contract first revised then enforced.
A contract may be revised first and then specifically enforced.
Source:
Civ. C. 1877, § 2007; R.C. 1895, § 5037; R.C. 1899, § 5037; R.C. 1905, § 6622; C.L. 1913, § 7205; R.C. 1943, § 32-0420.
Derivation:
Cal. Civ. C., 3402.
32-04-21. When rescission of contract adjudged.
The rescission of a written contract may be adjudged on the application of the party aggrieved:
- In any of the cases mentioned in section 9-09-02;
- When the contract is unlawful for causes not apparent upon its face and when the parties were not equally in fault; or
- When the public interest will be prejudiced by permitting it to stand.
Source:
Civ. C. 1877, § 2008; R.C. 1895, § 5038; R.C. 1899, § 5038; R.C. 1905, § 6623; C.L. 1913, § 7206; R.C. 1943, § 32-0421.
Derivation:
Cal. Civ. C., 3406.
Cross-References.
Rescission of contract for damages for personal injuries, see N.D.C.C. § 9-08-09.
Notes to Decisions
Fraud.
The specific relief of rescission of a written contract may be adjudged if the consent of the party rescinding was obtained through fraud, provided that he acts promptly upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability and is aware of his right to rescind. Lanz v. Naddy, 82 N.W.2d 809, 1957 N.D. LEXIS 119 (N.D. 1957).
Where the vice president of the bank fraudulently induced a debtor to enter into a $250,000 loan by making false statements, the district court did not abuse its discretion in granting the debtor equitable rescission of the loan under N.D.C.C. § 32-04-21. The bank could not look to the debtor for repayment of the loan, because he neither received the loan proceeds nor received the promised collateral for the obligation. Am. Bank Ctr. v. Wiest, 2010 ND 251, 793 N.W.2d 172, 2010 N.D. LEXIS 255 (N.D. 2010).
Jury Trial.
A rescission action under N.D.C.C. §§ 32-04-21 through 32-04-23 is a suit in equity, for which a trial by jury is not available. Therefore, an action by house purchaser seeking to cancel the contract based on the seller’s fraudulent misrepresentations as to the house’s structural integrity and water problems was equitable in nature and trial judge did not err in denying plaintiff’s motion for a jury trial. Barker v. Ness, 1998 ND 223, 587 N.W.2d 183, 1998 N.D. LEXIS 228 (N.D. 1998).
Where property owners seeking to rescind real estate sales contract on the basis of fraud made no offer to restore the purchase price before intervening in a partition action pertaining to the property, the claim was an equitable one, and thus the claimants had no right to a jury trial. Murphy v. Murphy, 1999 ND 118, 595 N.W.2d 571, 1999 N.D. LEXIS 110 (N.D. 1999).
Misdescription of Land.
Where a contract describes more land than was intended to be included therein, equity will rescind or reform the contract. Benesh v. Travelers' Ins. Co., 14 N.D. 39, 103 N.W. 405, 1905 N.D. LEXIS 17 (N.D. 1905).
Mistake of Fact.
In a contract action based on the sale of a vintage car, when the trial court concluded that the parties’ consent to the agreement was given under a material mistake of fact about the engine and ordered the parties restored to their pre-contractual position, the court effectively granted the parties equitable rescission of the contract. Romanyshyn v. Fredericks, 1999 ND 128, 597 N.W.2d 420, 1999 N.D. LEXIS 148 (N.D. 1999).
Mistake of Law.
Vendor was not entitled to rescind land sale contract with mineral reservation on the basis of lack of free and informed consent due to a mistake of law concerning the procedure to reserve the minerals where the mistake of law did not affect the substance of the vendor’s consent to the contract, but simply frustrated his attempt to reserve all minerals. Hovden v. Lind, 301 N.W.2d 374, 1981 N.D. LEXIS 262 (N.D. 1981).
Public Utilities.
Plaintiff, a customer for steam heat service, stated a cause of action for rescission of heating contract under subsection 2 of this section where his complaint clearly alleged the payment of money in innocent and mistaken reliance upon an unlawful contract, that plaintiff was not equally in the wrong with the defendant, and that the contract was unlawful for causes which were not apparent upon its face. Lyons v. Otter Tail Power Co., 70 N.D. 681, 297 N.W. 691, 1941 N.D. LEXIS 217 (N.D. 1941).
Collateral References.
Contracts 249-274.
17A Am. Jur. 2d, Contracts, §§ 524 et seq.
17A C.J.S. Contracts, §§ 456-499.
Contracting party’s right of redress for fraud as affected by his own breach of the contract before discovering the fraud, 13 A.L.R.2d 1248.
False representations as to income, profits, or productivity of property as fraud, 27 A.L.R.2d 14.
What constitutes reservation of right to rescind contract, as against third party beneficiary, 44 A.L.R.2d 1270.
Conflict of laws in determining whether facts and circumstances operate to terminate, breach, rescind, or repudiate a contract, 50 A.L.R.2d 254.
Executors: asserted right to rescission or cancellation of contract with decedent as claim which must be presented to his personal representative, 73 A.L.R.2d 883.
Mutual rescission or release of contract as affecting rights of third-party beneficiary, 97 A.L.R.2d 1262.
Comment Note.—Amount of attorneys’ compensation in absence of contract or statute fixing amount, 57 A.L.R.3d 475.
Amount of attorneys’ compensation in matters involving guardianship and trusts, 57 A.L.R.3d 550.
Amount of attorneys’ fees in tort actions, 57 A.L.R.3d 584.
Amount of attorneys’ compensation in proceedings involving wills and administration of decedents’ estates, 58 A.L.R.3d 317.
Excessiveness or adequacy of attorneys’ fees in matters involving real estate—modern cases, 10 A.L.R.5th 448.
Excessiveness or adequacy of attorneys’ fees in domestic relations cases, 17 A.L.R.5th 366.
Excessiveness or inadequacy of attorneys fees in matters involving commercial and general business activities, 23 A.L.R.5th 241.
Calculations of attorneys’ fees under Federal Tort Claims Act—28 USCS sec. 2678, 86 A.L.R. Fed. 866.
32-04-22. Rescission not adjudged for mere mistake.
Rescission cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same condition as if the contract had not been made.
Source:
Civ. C. 1877, § 2009; R.C. 1895, § 5039; R.C. 1899, § 5039; R.C. 1905, § 6624; C.L. 1913, § 7207; R.C. 1943, § 32-0422.
Derivation:
Cal. Civ. C., 3407.
Notes to Decisions
Exchange of Value.
Rescission based upon mutual mistake will be allowed when the party opposing rescission has not demonstrated that he has parted with anything of value which should be restored to him. Dardis v. Eddy Bros., 223 N.W.2d 674, 1974 N.D. LEXIS 174 (N.D. 1974).
32-04-23. Compensation may be required.
On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require.
Source:
Civ. C. 1877, § 2010; R.C. 1895, § 5040; R.C. 1899, § 5040; R.C. 1905, § 6625; C.L. 1913, § 7208; R.C. 1943, § 32-0423.
Derivation:
Cal. Civ. C., 3408.
Notes to Decisions
- Determination of Amount.
- Improvements on Land.
- No Compensation Required.
- Return to Precontractual Position.
Determination of Amount.
The court has the power to determine the amount which is owing or which must be paid by way of compensation by one who maintains an action for cancellation of a contract to the one against whom it is brought. Donovan v. Dickson, 37 N.D. 404, 164 N.W. 27, 1917 N.D. LEXIS 114 (N.D. 1917).
Improvements on Land.
Where specific performance was denied and the contract was canceled by the court, reimbursement should be made for the money expended in improvements upon the land in reliance upon the contract, at least to the extent of the increased value of the land resulting from the improvements. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).
No Compensation Required.
Where the vice president of the bank fraudulently induced a debtor to enter into a $250,000 loan by making false statements, the district court did not abuse its discretion in granting the debtor equitable rescission of the loan under N.D.C.C. § 32-04-23. The bank could not look to the debtor for repayment of the loan, because he neither received the loan proceeds nor received the promised collateral for the obligation. Am. Bank Ctr. v. Wiest, 2010 ND 251, 793 N.W.2d 172, 2010 N.D. LEXIS 255 (N.D. 2010).
Return to Precontractual Position.
The principle that both parties must be restored to their pre-contractual positions applies to equitable rescission actions. Therefore, in an equitable rescission action to cancel contract for purchase of house, trial court did not err in ordering purchaser to remit to the seller the rental income derived from the house. Barker v. Ness, 1998 ND 223, 587 N.W.2d 183, 1998 N.D. LEXIS 228 (N.D. 1998).
32-04-24. When cancellation of instrument adjudged.
When a written instrument, or the record thereof, may cause injury to a person against whom such instrument is void or voidable, such instrument, in an action brought by the party injured, may be adjudged void and the same ordered to be delivered up for cancellation and the record thereof canceled, whether or not extrinsic evidence is necessary to show its invalidity.
Source:
Civ. C. 1877, § 2011; R.C. 1895, § 5041; R.C. 1899, § 5041; R.C. 1905, § 6626; C.L. 1913, § 7209; R.C. 1943, § 32-0424.
Derivation:
Cal. Civ. C., 3412.
Notes to Decisions
Cloud upon Title.
A complaint to remove a cloud from plaintiff’s title and cancel a fraudulent deed should describe the deed in such a manner that it can be identified for cancellation by the officer of the court. Nation v. Cameron, 11 N.W. 525, 2 Dakota 347, 1880 Dakota LEXIS 11 (Dakota 1880).
An instrument is not a cloud upon a title if its invalidity appears on its face. Morris v. McKnight, 1 N.D. 266, 47 N.W. 375, 1890 N.D. LEXIS 34 (N.D. 1890).
Denial of Specific Performance.
A denial of specific performance means the contract will not be enforced in equity, but cancellation or rescission of the contract simultaneously with denial of specific performance means that it will not be enforced in equity or in law; the standard for granting cancellation is more strict than that for denying specific performance. Sand v. Red River Nat'l Bank & Trust Co., 224 N.W.2d 375, 1974 N.D. LEXIS 132 (N.D. 1974).
Lis Pendens.
Because defendant's complaint in tribal court was not one affecting the title to real property, as it sought only a money judgment, and a lis pendens for that action was not entitled to be recorded, the court concluded that the improperly recorded lis pendens was subject to cancellation under this section, and therefore the district court erred by dismissing plaintiff's application to cancel the lis pendens. Conrad v. Wilkinson, 2017 ND 212, 901 N.W.2d 348, 2017 N.D. LEXIS 214 (N.D. 2017).
Collateral References.
Vendor’s obligation to disclose to purchaser of land presence of contamination from hazardous substances or wastes, 12 A.L.R.5th 630.
32-04-25. Partial cancellation.
When an instrument is evidence of different rights or obligations, it may be canceled in part and allowed to stand for the residue.
Source:
Civ. C. 1877, § 2013; R.C. 1895, § 5042; R.C. 1899, § 5042; R.C. 1905, § 6627; C.L. 1913, § 7210; R.C. 1943, § 32-0425.
Derivation:
Cal. Civ. C., 3414.
CHAPTER 32-05 Preventive Relief
32-05-01. When preventive relief given.
Preventive relief may be given in the cases specified in this chapter and in no other cases.
Source:
Civ. C. 1877, § 1987; R.C. 1895, § 5017; R.C. 1899, § 5017; R.C. 1905, § 6602; C.L. 1913, § 7185; R.C. 1943, § 32-0501.
Derivation:
Cal. Civ. C., 3366.
Cross-References.
Labor disputes and court proceedings therein, see N.D.C.C. ch. 34-08.
32-05-02. Preventive relief not given to enforce penal law.
Preventive relief cannot be granted to enforce a penal law, except in a case of nuisance, nor to enforce a penalty or forfeiture in any case.
Source:
Civ. C. 1877, § 1990; R.C. 1895, § 5020; R.C. 1899, § 5020; R.C. 1905, § 6605; C.L. 1913, § 7188; R.C. 1943, § 32-0502.
Derivation:
Cal. Civ. C., 3369.
Notes to Decisions
In General.
Equity has no jurisdiction to restrain the commission of crimes, and an injunction may not issue for the prevention of criminal acts unconnected with violation of legal rights. Fargo Women's Health Org. v. Lambs of Christ, 488 N.W.2d 401, 1992 N.D. LEXIS 183 (N.D. 1992).
Interference with Legal Rights.
When the acts sought to be enjoined interfere with legal rights, the court’s power to issue an injunction is not destroyed because the acts are punishable as a crime. In such a case, the equitable powers of the court are not put forth to enjoin the commission of a crime, although that may incidentally result; they are put forth to protect legal rights against invasion by acts which, if committed, would cause injury for which the ordinary remedies at law would not afford adequate relief. Fargo Women's Health Org. v. Lambs of Christ, 488 N.W.2d 401, 1992 N.D. LEXIS 183 (N.D. 1992).
Small Loan Business.
State may enjoin conduct of a usurious small loan business to prevent acts injurious to the public welfare where the remedy at law or by criminal prosecution would be inadequate. State ex rel. Burgum v. Hooker, 87 N.W.2d 337, 1957 N.D. LEXIS 182 (N.D. 1957).
Collateral References.
Injunction 102, 105.
42 Am. Jur. 2d, Injunctions, §§ 175 et seq.
43A C.J.S. Injunctions, §§ 276-278.
Official oppression, injunction against acts constituting offense of, 83 A.L.R.2d 1007, 1016.
Validity, construction, and effect of “Sunday closing” or “blue” laws—modern status, 10 A.L.R.4th 246.
32-05-03. How preventive relief given.
Preventive relief consists in prohibiting a party from doing that which ought not to be done. It is granted by injunction, temporary or final.
Source:
Civ. C. 1877, §§ 1989, 2014; R.C. 1895, §§ 5019, 5043; R.C. 1899, §§ 5019, 5043; R.C. 1905, §§ 6604, 6628; C.L. 1913, §§ 7187, 7211; R.C. 1943, § 32-0503.
Derivation:
Cal. Civ. C., 3368, 3420.
Collateral References.
Injunction 1-8.
42 Am. Jur. 2d, Injunctions, §§ 2-11.
43 C.J.S. Injunctions, §§ 1-18.
32-05-04. When final injunction granted.
Except when otherwise provided by this chapter, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant:
- When pecuniary compensation would not afford adequate relief;
- When it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief;
- When the restraint is necessary to prevent a multiplicity of judicial proceedings; or
- When the obligation arises from a trust.
Source:
Civ. C. 1877, § 2016; R.C. 1895, § 5045; R.C. 1899, § 5045; R.C. 1905, § 6630; C.L. 1913, § 7213; R.C. 1943, § 32-0504.
Derivation:
Cal. Civ. C., 3422.
Cross-References.
Use of injunction in labor disputes, see N.D.C.C. ch. 34-08.
Notes to Decisions
- Damages Inadequate Remedy.
- Disputed Terms of Sale.
- Employee Soliciting Employer’s Clients.
- Injunctive Relief.
- Peaceable Use of Real Property.
- Preventive Relief.
- Trespass.
- Trust Obligation.
Damages Inadequate Remedy.
This section, authorizes a final injunction to prevent the breach of an obligation when damages are insufficient to afford adequate relief. Farm Credit Bank v. Brakke, 483 N.W.2d 167, 1992 N.D. LEXIS 69 (N.D. 1992).
Disputed Terms of Sale.
Court had no authority, by an injunction, to take from defendant property clearly his, and to which he held title, because there was a dispute between the parties as to the fulfillment of the terms of the contract of sale. FARMERS UNION OIL CO. v. KILGORE, 71 N.D. 199, 299 N.W. 318, 1941 N.D. LEXIS 154 (N.D. 1941).
Employee Soliciting Employer’s Clients.
Accounting firm was entitled to injunctive relief to prevent former employee from performing any audit or other accounting or booking services and from accepting any compensation for such services from the firm’s clients where the former employee had solicited the firm’s clients for his own behalf while he was still employed with the firm and before quitting the firm to start his own accounting business. Biever, Drees & Nordell v. Coutts, 305 N.W.2d 33, 1981 N.D. LEXIS 267 (N.D. 1981).
Injunctive Relief.
—Improper.
Where a hospital followed its bylaws, which authorized an interim suspension of a doctor’s privileges during an investigation upon the executive committee finding it was necessary to prevent potential harm to patients, the trial court abused its discretion when it enjoined the suspension. Magrinat v. Trinity Hosp., 540 N.W.2d 625, 1995 N.D. LEXIS 229 (N.D. 1995).
Peaceable Use of Real Property.
Injunctive relief is appropriate to prevent a threatened disturbance in the peaceable use, enjoyment, and possession of real property. Farm Credit Bank v. Brakke, 483 N.W.2d 167, 1992 N.D. LEXIS 69 (N.D. 1992).
Preventive Relief.
Preventive relief may be given by injunction when pecuniary compensation is not an adequate remedy; when it would be extremely difficult to ascertain the amount of compensation; when restraint is necessary to prevent a multiplicity of suits. Strobeck v. McWilliams, 42 N.D. 30, 171 N.W. 865, 1919 N.D. LEXIS 115 (N.D. 1919); Northern Pac. Ry. v. Northern Reo Co., 64 N.D. 68, 250 N.W. 329 (1934).
In an action by the purchaser for preventive relief by injunction, to restrain a seller from doing that which ought not to be done, viz., a wrongful interference with the possession, use, and enjoyment of property contracted for, it is not material whether the legal title to the goods is retained by the seller. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).
Where a remedy for damages would be insufficient because it would be extremely difficult to ascertain the amount that would afford adequate relief, this section authorizes a final injunction. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).
Trespass.
A court of equity will protect the rightful claimant’s right to possession against a trespasser, and when he has established his legal right and the fact of its violation, the rightful claimant is in general entitled to final injunction to prevent the recurrence of the trespass. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).
Trust Obligation.
A final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant when the obligation arises from a trust. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).
Collateral References.
Injunction 14-19, 189, 190.
42 Am. Jur. 2d, Injunctions, §§ 12 et seq.
43 C.J.S. Injunctions, §§ 27, 33, 48-68.
Elections: canvassing votes and declaring result of election, power to enjoin, 1 A.L.R.2d 588.
Custody of child: removal of child from state in violation of injunction order as affecting jurisdiction of courts of another state to award custody, 4 A.L.R.2d 7.
Injunction by state court against action in court of another state, 6 A.L.R.2d 896.
Public utility rates, adequacy, as regards right to injunction, of other remedy for review of order fixing, 8 A.L.R.2d 839.
Liquidated damages, provision for, in contract for cooperative marketing of farm products as affecting right to injunction, 12 A.L.R.2d 130.
Unemployment compensation: declaratory relief with respect to unemployment compensation as within statute forbidding injunctive relief, 14 A.L.R.2d 826.
Contract, right to injunction against inducing breach of, as affected by remedy at law, 26 A.L.R.2d 1227.
Breach of contract: injunction against procuring breach of contract as affected by remedy at law, 26 A.L.R.2d 1227.
Encroachments by adjoining landowner, mandatory injunction to compel removal of, 28 A.L.R.2d 679.
Labor relations: state’s power to enjoin violation of collective labor contract as affected by federal labor relations acts, 32 A.L.R.2d 829.
Public officer, injunction as remedy against removal of, 34 A.L.R.2d 554.
Zoning regulations, remedies to compel municipal officials to enforce, 35 A.L.R.2d 1135, 1136.
Parking vehicles on private way, injunction against, 37 A.L.R.2d 944.
Business names: injunction to prevent use of one’s own name for business purposes to detriment of another using the same or a similar name, in absence of self-imposed restraint, 44 A.L.R.2d 1156.
Defamation: injunction as remedy against defamation of person as affected by legal remedy, 47 A.L.R.2d 715, 724.
Insurance injunction to prevent insurer from settling suit against wrongdoer to detriment of insurer, 51 A.L.R.2d 697, 726.
Other state or country, injunction against enforcement of judgment of, 54 A.L.R.2d 1240.
Water rights: injunction as affected by relative riparian or littoral rights respecting the removal of waters from a natural, private, nonnavigable lake, 54 A.L.R.2d 1450.
Fishing, boating, bathing, or the like in inland lakes, injunction as remedy with respect to rights of, 57 A.L.R.2d 569, 590.
Trespass: injunction against repeated or continuing trespass on ground of adequacy of legal remedy, 60 A.L.R.2d 310.
Trade secrets: wording injunction in terms avoiding disclosure of trade secret or the like, 62 A.L.R.2d 509, 530.
Copyright of telephone directory, injunction against infringement of, 63 A.L.R.2d 1096, 1103.
Taxation: financial hardship or inability to pay tax as rendering inapplicable statute denying remedy by injunction against assessment or collection of tax, 65 A.L.R.2d 550.
Arbitration: injunction against arbitration proceedings, prior to award, on ground of interest, bias, prejudice, collusion, or fraud, 65 A.L.R.2d 755, 757.
Sewerage connection, right of private sewerage system owner to mandatory injunction for removal of unauthorized, 76 A.L.R.2d 1329.
Timber: injunction to prevent interference with operations under standing tree contract providing that trees to be cut and order of cutting shall be selected by seller, 79 A.L.R.2d 1243.
Usury: practice of exacting usury as ground for injunction, 83 A.L.R.2d 848.
Crops: injunctive relief as to contract between grower of vegetable or fruit crops and purchasing processor, packer, or canner, 87 A.L.R.2d 732, 779.
Eminent domain, denial of injunction against exercise of power of, because of adequate remedy at law, 93 A.L.R.2d 465.
Absentee Voters’ Laws, injunction proceedings under, 97 A.L.R.2d 257.
Infant’s employment contract, enforceability of covenant not to compete in, 17 A.L.R.3d 863.
Trade secrets: propriety of permanently enjoining one guilty of unauthorized use of trade secret from engaging in sale or manufacture of device in question, 38 A.L.R.3d 572.
Diversion of water: propriety of injunctive relief against diversion of water by municipal corporation or public utility, 42 A.L.R.3d 426.
Pollution control: preliminary mandatory injunction to prevent, correct, or reduce effects of polluting practices, 49 A.L.R.3d 1239.
Use of “family name” by corporation as unfair competition, 72 A.L.R.3d 8.
Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.
Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.
Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to preactice medicine, 51 A.L.R.4th 1147.
Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.
Law Reviews.
Summary of North Dakota Supreme Court decisions on Appeal and Error, 72 N.D. L. Rev. 768 (1996).
32-05-05. When injunction not granted.
An injunction cannot be granted:
- To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings.
- To stay proceedings in a court of the United States.
- To stay proceedings in any other state upon a judgment of a court of that state.
- To prevent the execution of a public statute by officers of the law for the public benefit.
- To prevent the breach of a contract, the performance of which could not be specifically enforced.
- To prevent the exercise of a public or private office in a lawful manner by the person in possession.
- To prevent a legislative act by a municipal corporation.
Source:
Civ. C. 1877, § 2017; R.C. 1895, § 5046; R.C. 1899, § 5046; S.L. 1901, ch. 108, § 1; R.C. 1905, § 6631; C.L. 1913, § 7214; R.C. 1943, § 32-0505.
Derivation:
Cal. Civ. C., 3423.
Cross-References.
Restrictions on granting preventive relief by courts in labor disputes, see N.D.C.C. § 34-08-03.
Notes to Decisions
- Breach of Contract.
- Officers of the Law.
- Public Officers.
- Sale of Public Utility.
- Success on Merits.
- Teacher’s Employment Contract.
- Zoning.
Breach of Contract.
A final injunction, when authorized, may be granted to restrain the breach of a contract, unless it is one the performance of which could not be specifically enforced. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).
Officers of the Law.
The term “officers of the law” is synonymous with “peace officers”. Bartels N. Oil Co. v. Jackman, 29 N.D. 236, 150 N.W. 576, 1915 N.D. LEXIS 7 (N.D. 1915).
Public Officers.
The district court may entertain jurisdiction of an action to enjoin the pure food commissioner from destroying plaintiff’s business. State ex rel. Ladd v. District Court, 17 N.D. 285, 115 N.W. 675, 1908 N.D. LEXIS 28 (N.D. 1908).
Issuance in taxpayers’ suit of restraining order to enjoin state treasurer from depositing state funds, and funds of state institutions, in the Bank of North Dakota was error. State ex rel. Lemke v. District Court, 49 N.D. 27, 186 N.W. 381, 1921 N.D. LEXIS 133 (N.D. 1921).
Injunctional order enjoining state officials from enforcing criminal judgment was erroneous. State ex rel. Shafer v. Lowe, 54 N.D. 637, 210 N.W. 501, 1926 N.D. LEXIS 72 (N.D. 1926), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).
Sale of Public Utility.
Where defendant owner and operator of an electric plant sold plant to plaintiff pursuant to agreement, delivering a bill of sale with warranty upon plaintiff’s payment of agreed purchase price, but the defendant failed to obtain authorization from the public service commission, the trial court properly enjoined defendant from interfering with plaintiff’s possession of the property. Otter Tail Power Co. v. Clark, 59 N.D. 320, 229 N.W. 915, 1930 N.D. LEXIS 145 (N.D. 1930).
Success on Merits.
In a case where injunctive relief was sought after the closing of a housing facility, there was no likelihood of success on the merits because argument that the decision was not rational addressed the wisdom and propriety of the legislative decision, and it was not shown why an appeal to the district court was not an adequate legal remedy to resolve this claim. Black Gold OilField Servs., LLC v. City of Williston, 2016 ND 30, 875 N.W.2d 515, 2016 N.D. LEXIS 35 (N.D. 2016).
Teacher’s Employment Contract.
Teacher employed by a private institution has no right to specific enforcement or injunctive relief to obtain reinstatement of her teaching position for alleged wrongful termination or to prevent a breach of her employment contract. Schauer v. Jamestown College, 323 N.W.2d 114, 1982 N.D. LEXIS 369 (N.D. 1982).
Zoning.
Declaratory and injunctive relief are appropriate if a municipality fails to comply with the statutory procedures for annexation and zoning, but may not be used to test the wisdom of an annexation or zoning decision, which is a legislative act. Frey v. City of Jamestown, 548 N.W.2d 784, 1996 N.D. LEXIS 157 (N.D. 1996).
In challenging a city’s decision to reject his petition for rezoning and annexation of his property, property owner argued that the city should have given greater credence to its comprehensive development plan and that the city gave too much credence to the complaints and concerns of area residents in reaching its decision; however, all of these factors went to the wisdom, propriety, and correctness of the decision, rather than compliance with the statutory procedures for annexation, and could not be challenged by seeking declaratory or injunctive relief. Braunagel v. City of Devils Lake, 2001 ND 118, 629 N.W.2d 567, 2001 N.D. LEXIS 141 (N.D. 2001).
CHAPTER 32-06 Injunction
32-06-01. Injunction by order.
An injunction by order may be made by the court in which an action is brought, or by a judge thereof, in the cases provided in section 32-06-02, and, when made by a judge, may be enforced as the order of the court.
Source:
C. Civ. P. 1877, § 188; R.C. 1895, § 5343; R.C. 1899, § 5343; R.C. 1905, § 6929; C.L. 1913, § 7528; R.C. 1943, § 32-0601.
Derivation:
Wait’s (N.Y.) Code, 218; Harston’s (Cal.) Practice, 525.
Notes to Decisions
- Alternative to Mandamus Action.
- Discretion of Court.
- Mortgage Foreclosure.
- Municipal Contract.
- Provisional Remedy.
- Supreme Court Issuing.
Alternative to Mandamus Action.
Trial court incorrectly concluded that injunction was an inappropriate form of relief, since a writ of injunction under this chapter is the correlative of the writ of mandamus under N.D.C.C. Ch. 32-34, and public officers can be compelled to comply with the law through mandamus, or mandatory injunction proceedings, the effect of the two procedures being essentially the same; therefore, a prison inmate’s right to compel prison authorities to provide him with free eyeglasses was dismissed prematurely where the performance of such an act could not be decided on the pleadings alone. Ennis v. Dasovick, 506 N.W.2d 386, 1993 N.D. LEXIS 168 (N.D. 1993).
Discretion of Court.
The granting of a temporary restraining order is within the sound legal discretion of the court. Campbell v. Campbell, 58 N.D. 244, 225 N.W. 805, 1929 N.D. LEXIS 201 (N.D. 1929).
Mortgage Foreclosure.
An injunction pendente lite can be issued only in a pending action or special proceeding, or to enjoin a mortgage foreclosure by advertisement. Security State Bank v. Peterson, 59 N.D. 341, 229 N.W. 921, 1930 N.D. LEXIS 147 (N.D. 1930).
Municipal Contract.
The taxpayers of a city had a right to maintain an action for an injunction restraining paving contract without showing any interest or injury other than that which they would suffer as taxpayers. Green v. Beste, 76 N.W.2d 165, 1956 N.D. LEXIS 112 (N.D. 1956).
Provisional Remedy.
The provisional remedy by injunction in this state is of statutory origin and is granted to a plaintiff only when necessary to protect his rights pending the final determination of the case upon the merits. Forman v. Healey, 11 N.D. 563, 93 N.W. 866, 1903 N.D. LEXIS 80 (N.D. 1903).
Supreme Court Issuing.
Writ of injunction was denied by the supreme court, the application for leave to file the information not being made by the attorney general, or in the name of the state, where the writ was sought as an original writ and not in aid of jurisdiction that had already attached. Anderson v. Gordon, 9 N.D. 480, 83 N.W. 993, 1900 N.D. LEXIS 159 (N.D. 1900).
32-06-02. Injunction — In what cases granted.
An injunction may be granted in any of the following cases:
- When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the plaintiff.
- When, during the litigation, it shall appear that the defendant is doing or threatening, or is about to do, or is procuring or suffering, some act to be done in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.
- When, during the pendency of an action, it shall appear by affidavit that the defendant threatens, or is about to remove or dispose of the defendant’s property, with intent to defraud the defendant’s creditors, a temporary injunction may be granted to restrain such removal or disposition.
Source:
C. Civ. P. 1877, § 189; R.C. 1895, § 5344; R.C. 1899, § 5344; R.C. 1905, § 6930; C.L. 1913, § 7529; R.C. 1943, § 32-0602.
Derivation:
Wait’s (N.Y.) Code, 219; Harston’s (Cal.) Practice, 526.
Notes to Decisions
- Adequate Alternate Remedy.
- Cancellation of Instruments.
- Commercial Speech.
- Criminal Proceedings.
- Defective Complaint.
- Demand for Relief.
- Determinative Factors.
- Discretion of Court.
- Disputed Title.
- Duration of Temporary Injunction.
- Extraordinary Remedy.
- Irregular Issuance.
- Irreparable Harm.
- Preservation of Status Quo.
- Provisional Remedy.
- Scope of Appellate Review.
- Supreme Court Issuing.
- Tourist Camp Inspection.
Adequate Alternate Remedy.
Preliminary injunctions usually will be denied if the applicant has adequate alternative remedy in the form of money damages or other relief. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Cancellation of Instruments.
In proceedings for the surrender and cancellation of a note and chattel mortgage executed pursuant to a fraudulent understanding, plaintiff’s request for an order restraining defendants, during pendency of such action, from assigning or transferring the note and mortgage was properly denied where it stated only that plaintiff anticipated and feared that defendants would make such transfer or assignment. Federal Land Bank v. Koslofsky, 67 N.D. 322, 271 N.W. 907, 1936 N.D. LEXIS 164, 1937 N.D. LEXIS 85 (N.D. 1936).
Commercial Speech.
In determining whether the trial court’s preliminary injunction constituted an unconstitutional prior restraint, it is necessary to determine whether the communication constituted commercial or noncommercial speech and then to determine whether the trial court afforded appropriate safeguards in imposing the preliminary injunction commensurate with the type of speech involved. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).
Advertisements of services of pro-life medical clinic held not fully protected speech, so that question of unconstitutional prior restraint of preliminary injunction prescribing false and misleading advertisements would be judged under a relaxed standard of scrutiny appropriate to commercial speech. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).
Any system of prior restraint on speech bears a heavy presumption against its constitutionality validity. However, commercial speech does not receive the full panoply of protection under the First Amendment as do other forms of protected speech. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).
Although the extent to which the prior restraint doctrine applies to commercial speech has not been fully delineated, it is quite clear that prior restraint on commercial speech is allowed to an extent which would not be allowed toward other forms of protected speech. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).
Criminal Proceedings.
An injunction will not be granted to stay criminal or quasi criminal proceedings. Lockwood v. Baird, 59 N.D. 713, 231 N.W. 851, 1930 N.D. LEXIS 189 (N.D. 1930).
The fact that a state statute can be enforced only by criminal prosecutions does not defeat the jurisdiction of equity to enjoin unlawful interference with property rights by unauthorized criminal proceedings under the statute. Weyman-Bruton Co. v. Ladd, 231 F. 898, 1916 U.S. App. LEXIS 1731 (8th Cir. N.D. 1916), limited, Smith v. Tillitson, 29 F.2d 535, 1928 U.S. App. LEXIS 2743 (8th Cir. Kan. 1928).
Defective Complaint.
An application for a temporary injunction should be denied where the complaint does not show a cause of action, and the defect in the complaint cannot be supplied by affidavit. King v. Stark County, 66 N.D. 467, 266 N.W. 654, 1936 N.D. LEXIS 189, 1936 N.D. LEXIS 190 (N.D. 1936).
Demand for Relief.
To authorize an injunction pendente lite the complaint must exhibit a right to a judgment of injunction, and the demand for relief must pray that the defendant be restrained from the commission of the act complained of during the litigation. McClure v. Hunnewell, 13 N.D. 84, 99 N.W. 48, 1904 N.D. LEXIS 13 (N.D. 1904).
A temporary restraining order may be issued in a civil action when one of the several conditions enumerated in the statute is shown to exist, but only when it shall appear by the complaint that the plaintiff is entitled to the relief demanded. Burton v. Walker, 13 N.D. 149, 100 N.W. 257, 1904 N.D. LEXIS 34 (N.D. 1904).
Determinative Factors.
The following factors are appropriate in determining whether injunctive relief should be granted: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; (4) effect on the public interest. (See Dataphase Systems v. C. L. Systems, 640 F.2d 109 (8th Cir. 1981) for a summary of these factors which is consistent with North Dakota law.) F-M Asphalt v. North Dakota State Highway Dep't, 384 N.W.2d 663, 1986 N.D. LEXIS 293 (N.D. 1986).
Nothing in record indicated that money damages would have been inadequate, that defendants would have been unable to satisfy money judgment in event that plaintiffs prevailed on merits, or that bank was in any danger as financial institution. Absence of any such evidence indicated that plaintiffs’ injuries, if any, could be adequately compensated by an award of damages and that plaintiffs were not likely to suffer irreparable harm before decision on merits could be rendered. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
A trial court’s discretion to grant or deny a preliminary injunction is based upon the following factors: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; and (4) effect on the public interest. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Landowner was not entitled to injunctive relief prohibiting a city from entering the landowner’s property to remove nuisance vehicles because the landowner did not show any injunctive relief factors weighed in the landowner’s favor, as the landowner did not show (1) a substantial probability of succeeding on the merits, (2) irreparable injury, (3) harm to other interested parties, or (4) a benefit to the public interest from granting the landowner the relief requested. State ex rel. City of Marion v. Alber, 2019 ND 289, 936 N.W.2d 52, 2019 N.D. LEXIS 289 (N.D. 2019).
Discretion of Court.
The granting or refusing of a temporary restraining order lies within the sound legal discretion of the court to which application is made. Bartels N. Oil Co. v. Jackman, 29 N.D. 236, 150 N.W. 576, 1915 N.D. LEXIS 7 (N.D. 1915); Federal Land Bank v. Koslofsky, 67 N.D. 322, 271 N.W. 907, 1936 N.D. LEXIS 164, 1937 N.D. LEXIS 85 (N.D. 1936).
The court may enjoin conduct which, if not restrained, would produce injury to the plaintiff “when it shall appear by the complaint that the plaintiff is entitled to the relief demanded”. On appeal, the North Dakota supreme court will not set aside an order granting a preliminary injunction unless the trial court abused its discretion in entering the order. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).
A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Decision to grant or deny preliminary injunction is within discretion of trial court, and its determination will not be disturbed on appeal unless it abused its discretion. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Disputed Title.
Court had no authority, by an injunction, to take from defendant property clearly his and to which he held title, merely because there was a dispute between the parties as to the fulfillment of the terms of the contract of sale. FARMERS UNION OIL CO. v. KILGORE, 71 N.D. 199, 299 N.W. 318, 1941 N.D. LEXIS 154 (N.D. 1941).
Duration of Temporary Injunction.
A temporary injunction is issued only to preserve the rights of the plaintiff during the pendency of the action and where the reasons for granting such injunction have ceased to exist and it is not likely that the acts which the temporary injunction sought to prohibit will be renewed, the injunction should be dissolved. Brace v. Steele County, 77 N.D. 276, 42 N.W.2d 672, 1950 N.D. LEXIS 127, 1950 N.D. LEXIS 128 (N.D. 1950).
Extraordinary Remedy.
Preliminary injunction is an extraordinary and drastic remedy and should not be granted unless the movant, by a clear showing, carries the burden of persuasion. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Irregular Issuance.
An injunctional order in an equity case pendente lite issued by a court having full equity powers and complete jurisdiction of the subject matter must be obeyed while it remains in force, however irregularly it may have issued. State v. Markuson, 7 N.D. 155, 73 N.W. 82, 1897 N.D. LEXIS 53 (N.D. 1897).
Irreparable Harm.
In absence of any evidence of irreparable harm, district court abused its discretion in issuing preliminary injunction limiting expenses of officers, directors and employees of the bank and compensation of defendant as well as restraining directors, officers, shareholders and employees of bank from taking any action to impair value of bank. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
An injury is irreparable when it cannot be adequately compensated in damages, and it is not necessary that pecuniary damage be shown to be great. Acts which result in a serious change of, or are destructive to, the property affected either physically or in the character in which it has been held or enjoyed, do an irreparable injury. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Preservation of Status Quo.
Preservation of the status quo recognizes that the most important prerequisite for issuance of a preliminary injunction is demonstrating that, if a preliminary injunction is not granted, the applicant is likely to suffer irreparable harm before decision on merits can be rendered. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Court’s discretion is exercised in light of preserving status quo and protecting rights of applicant pending determination on the merits. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Provisional Remedy.
A defendant in a civil action is not entitled to a provisional remedy by injunction. Forman v. Healey, 11 N.D. 563, 93 N.W. 866, 1903 N.D. LEXIS 80 (N.D. 1903).
Scope of Appellate Review.
In reviewing the propriety of a preliminary injunction, it is inappropriate for the supreme court to resolve merit issues on the principal action. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).
In determining whether or not the trial court abused its discretion in granting the preliminary injunction, the North Dakota supreme court is bound by the facts as presented to the trial court. Fargo Women's Health Org. v. Larson, 381 N.W.2d 176, 1986 N.D. LEXIS 234 (N.D.), cert. denied, 476 U.S. 1108, 106 S. Ct. 1957, 90 L. Ed. 2d 365, 1986 U.S. LEXIS 2996 (U.S. 1986).
Supreme Court Issuing.
The supreme court, in the exercise of its original jurisdiction, can issue a writ of injunction only upon an information therefor filed by the attorney general or under his authority, and by leave of the court first obtained and in the name of the state. Anderson v. Gordon, 9 N.D. 480, 83 N.W. 993, 1900 N.D. LEXIS 159 (N.D. 1900).
Because a candidate for insurance commissioner was not a resident until after November 2016, she would not have been a North Dakota resident for five years on November 3, 2020. Thus, pursuant to N.D.C.C. §§ 27-02-04 and 32-06-02(1), an elector was entitled to a writ of injunction restraining the Secretary of State from placing the candidate’s name on the general election ballot. Berg v. Jaeger, 2020 ND 178, 948 N.W.2d 4, 2020 N.D. LEXIS 181 (N.D. 2020).
Tourist Camp Inspection.
A tourist camp operator could not maintain an action to enjoin inspection of the camp by the state food commissioner and the inspector of hotels. Lockwood v. Baird, 59 N.D. 713, 231 N.W. 851, 1930 N.D. LEXIS 189 (N.D. 1930).
DECISIONS UNDER PRIOR LAW
Liquor Nuisance.
In action to abate a liquor nuisance under R.C. 1899, § 1605 (since repealed), it was proper to issue injunction at commencement of action upon complaint alone where complaint was made by the state’s attorney and verified by him upon information and belief. State ex rel. Register v. Patterson, 13 N.D. 70, 99 N.W. 67 (N.D. 1904).
Collateral References.
Injunction 9-24.
42 Am. Jur. 2d, Injunctions, §§ 12 et seq.
43 C.J.S. Injunctions, §§ 19 et seq.
32-06-03. Injunction — When granted — Limitation.
The injunction may be granted at the time of commencing the action, or at any time afterwards before judgment, upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. A copy of the affidavit must be served with the injunction. In no case shall a longer period than six months elapse before the hearing of the merits of the case shall be had for the purpose of deciding the question as to the justice or necessity of making the temporary restraining order permanent.
Source:
C. Civ. P. 1877, § 190; R.C. 1895, § 5345; R.C. 1899, § 5345; R.C. 1905, § 6931; S.L. 1911, ch. 154, § 1; C.L. 1913, § 7530; R.C. 1943, § 32-0603.
Derivation:
Wait’s (N.Y.) Code, 220; Harston’s (Cal.) Practice, 527.
Note.
This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.
Notes to Decisions
- Applicability.
- Discretion of Court.
- Enforcement of Execution.
- Failure to Demand Hearing or Dissolution.
- House of Prostitution.
- Waiver of Time Limit on Hearing.
Applicability.
This section was intended to prevent temporary orders from substituting indefinitely for a permanent ruling after a hearing on the merits, and the six-month limitation under this section applies to temporary or preliminary injunctions. State v. Holecek, 545 N.W.2d 800, 1996 N.D. LEXIS 102 (N.D. 1996).
Discretion of Court.
This section vests in the trial court the discretion to determine in the first instance whether a temporary injunction shall be granted upon the giving of the proper security; but that discretion should be exercised in the light of the rule that the purpose of a temporary injunction is to preserve the status quo and protect the rights of the plaintiff pending a determination of the merits. Gillies v. Radke, 78 N.D. 974, 54 N.W.2d 155, 1952 N.D. LEXIS 90 (N.D. 1952).
A temporary injunction may be issued by the court in its discretion at the commencement of an action, if by the pleadings and supporting affidavits the court deems sufficient grounds exist therefor. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).
Enforcement of Execution.
An injunction pendente lite can be issued only in a pending action or special proceeding, or to enjoin a mortgage foreclosure by advertisement, but not to enjoin a judgment creditor from enforcing an execution. Security State Bank v. Peterson, 59 N.D. 341, 229 N.W. 921, 1930 N.D. LEXIS 147 (N.D. 1930).
Failure to Demand Hearing or Dissolution.
Trial court erred in dismissing criminal charges under N.D.C.C. § 12.1-10-05 against defendants accused of violating temporary injunction, who had not exercised their right to demand a hearing be held within six months of the time the temporary injunction was issued or to seek dissolution of the injunction after six months under this section, because the injunction remained valid and their attempt to dissolve the injunction after alleged violation came too late. State v. Holecek, 545 N.W.2d 800, 1996 N.D. LEXIS 102 (N.D. 1996).
House of Prostitution.
A house of prostitution may be enjoined as a nuisance. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).
Waiver of Time Limit on Hearing.
The six-month limitation imposed by this section, can be waived by a party who objects to making a temporary order permanent. Ronngren v. Beste, 483 N.W.2d 191, 1992 N.D. LEXIS 65 (N.D. 1992).
Collateral References.
Injunction 140, 141, 152.
42 Am. Jur. 2d, Injunctions, §§ 12 et seq.
43A C.J.S. Injunctions, §§ 296, 297, 310-317, 335-346.
32-06-04. When injunction allowed after answer.
An injunction shall not be allowed after the defendant shall have answered unless upon notice or upon an order to show cause, but in such case the defendant may be restrained until the decision of the court or judge granting or refusing the injunction.
Source:
C. Civ. P. 1877, § 191; R.C. 1895, § 5346; R.C. 1899, § 5346; R.C. 1905, § 6932; C.L. 1913, § 7531; R.C. 1943, § 32-0604.
Derivation:
Wait’s (N.Y.) Code, 221; Harston’s (Cal.) Practice, 528.
Note.
This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.
Notes to Decisions
Service of Answer.
An injunction pendente lite may be allowed after the service of an answer by the defendant. Murphy v. Swanson, 50 N.D. 788, 198 N.W. 116, 1924 N.D. LEXIS 32 (N.D. 1924).
32-06-05. Security upon an injunction — Damages.
When no provision is made by statute as to security upon an injunction, the court or judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as the party may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference or otherwise as the court shall direct.
Source:
C. Civ. P. 1877, § 192; R.C. 1895, § 5347; R.C. 1899, § 5347; R.C. 1905, § 6933; C.L. 1913, § 7532; R.C. 1943, § 32-0605.
Derivation:
Wait’s (N.Y.) Code, 222; Harston’s (Cal.) Practice, 529.
Note.
This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.
Notes to Decisions
- Application of Statute.
- Discretion of Court.
- Failure to Furnish Security.
- Failure to Require Bond.
- Purpose of Statute.
- Security Mandatory.
Application of Statute.
The provisions of this statute as to security upon an injunction are mandatory. Murphy v. Swanson, 50 N.D. 788, 198 N.W. 116, 1924 N.D. LEXIS 32 (N.D. 1924).
Discretion of Court.
In proceedings to enjoin increased utility rates, it was not an abuse of discretion for trial court to require defendants to furnish adequate bonds conditioned for the repayment of surcharges collected under the purported orders of the public service commission. State ex rel. Lemke v. Union Light, Heat, & Power Co., 47 N.D. 402, 182 N.W. 539, 1921 N.D. LEXIS 115 (N.D. 1921).
A trial court, upon dissolution of injunction, has discretionary power to assess damages, to order the damages to be ascertained by reference or in such other manner as the court may direct, or leave the injunction defendant to his remedy by an action at law. Wolfgram v. Hall, 79 N.D. 138, 54 N.W.2d 896, 1952 N.D. LEXIS 105 (N.D. 1952).
Failure to Furnish Security.
Failure to furnish security for a temporary injunction does not necessarily require the injunction to be vacated, but is a matter that may be remedied by the furnishing of the security. Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 1979 N.D. LEXIS 296 (N.D. 1979).
Failure to Require Bond.
Whether a trial court erred in granting an injunction pendente lite without requiring a bond from the plaintiffs is not important on appeal from the final judgment in an action tried on the merits. Weeks v. Hetland, 52 N.D. 351, 202 N.W. 807, 1925 N.D. LEXIS 26 (N.D. 1925).
Where, at the inception of an action by conditional buyers to enjoin conditional vendors from taking possession of or selling the property, the plaintiffs furnished the required written undertaking, unlimited in amount, an injunction issued by the trial court was not invalid for want of the undertaking required by this section. Mevorah v. Goodman, 65 N.W.2d 278, 1954 N.D. LEXIS 85, 1954 N.D. LEXIS 86 (N.D. 1954).
Purpose of Statute.
The purpose of the security required to be given upon the granting of an injunction pursuant to this section is to indemnify the defendants against damages resulting from injury sustained as a consequence of the injunction. The statute does not require security for punitive damages. Gillies v. Radke, 78 N.D. 974, 54 N.W.2d 155, 1952 N.D. LEXIS 90 (N.D. 1952).
Security Mandatory.
Where no provision as to security is made by statute, furnishing of security is required for the issuance of a temporary injunction. Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 1979 N.D. LEXIS 296 (N.D. 1979).
Collateral References.
Injunction 148.
42 Am. Jur. 2d, Injunctions, §§ 282 et seq.
43A C.J.S. Injunctions, §§ 286-290.
Dismissal of suit for injunction as conclusively establishing that temporary injunction had been improvidently granted, 54 A.L.R.2d 473, 505.
Necessary parties defendant to independent action on injunction bond, 55 A.L.R.2d 545.
Prerequisite to issuance of temporary restraining order, 73 A.L.R.2d 854.
Court’s lack of jurisdiction of subject matter in granting injunction as a defense in action on injunction bond, 82 A.L.R.2d 1064.
Dismissal without prejudice as breach of injunction bond, 91 A.L.R.2d 1312.
Period for which damages are recoverable or are computed under injunction bond, 95 A.L.R.2d 1190.
32-06-06. Order to show cause.
If the court or judge deems it proper that the defendant, or any of the several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown at a specified time and place why the injunction should not be granted, and the defendant in the meantime may be restrained.
Source:
C. Civ. P. 1877, § 193; R.C. 1895, § 5348; R.C. 1899, § 5348; R.C. 1905, § 6934; C.L. 1913, § 7533; R.C. 1943, § 32-0606.
Derivation:
Wait’s (N.Y.) Code, 223; Harston’s (Cal.) Practice, 530.
Note.
This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.
Notes to Decisions
Application of Statute.
This section recognizes the jurisdiction of the court to grant a temporary injunction ex parte and places the question of whether a hearing shall be had prior to such granting within the discretion of the court. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).
Irregularity in Issuing.
An irregularity in the manner of the issuance of the temporary injunction cannot avail the defendant in a criminal contempt proceeding for violating the injunction. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).
32-06-07. Restraining orders — When issued.
A restraining order, or an order to show cause in the nature of a restraining order, will not be issued ex parte or without a hearing, unless it shall be shown in the moving papers that there exists such an exigency or occasion as requires the immediate issuance of an order so that the rights of the parties may be preserved.
Source:
District Court Rule No. 6; R.C. 1943, § 32-0607.
Note.
This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.
Notes to Decisions
Application of Statute.
This section refers to the restraining of acts not illegal in themselves but which may destroy the status quo of the matter in issue until the rights of the parties are adjudicated. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).
Damages.
In a case involving a prescriptive road, an owner was not entitled to damages or attorney fees regarding the procedural method used under current law for obtaining an ex parte temporary restraining order. Such orders were allowed in exigent circumstances to preserve the parties’ rights. McKenzie County v. Reichman, 2012 ND 20, 812 N.W.2d 332, 2012 N.D. LEXIS 20 (N.D. 2012).
Dissolving Temporary Restraining Order.
Where party made a prima facie showing entitling it to a temporary restraining order, and no change in the facts or law occurred between the time the restraining order was granted and the time it was dissolved, the temporary restraining order should not have been dissolved and the district court abused its discretion in doing so. Amerada Hess Corp. v. Furlong Oil & Minerals Co., 336 N.W.2d 129, 1983 N.D. LEXIS 308 (N.D. 1983).
Purpose of Order.
The purpose of a restraining order is to keep matters in status quo until a determination is made whether a temporary injunction should issue. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).
32-06-08. Injunction against corporation or limited liability company — When granted.
An injunction to suspend the general and ordinary business of a corporation or limited liability company must not be granted without due notice of the application therefor to the proper officer of the corporation or to the proper manager of the limited liability company, except when the state is a party to the proceeding.
Source:
C. Civ. P. 1877, § 194; R.C. 1895, § 5349; R.C. 1899, § 5349; R.C. 1905, § 6935; C.L. 1913, § 7534; R.C. 1943, § 32-0608; S.L. 1993, ch. 54, § 106.
Derivation:
Wait’s (N.Y.) Code, 224; Harston’s (Cal.) Practice, 531.
Note.
This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.
32-06-09. Application to vacate — When injunction granted without notice.
If an injunction is granted by a judge of a court without due notice, the defendant at any time before the trial may apply, upon notice, to a judge of the court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affidavits on which the injunction was granted or upon affidavits on the part of the defendant, with or without the answer.
Source:
C. Civ. P. 1877, § 195; R.C. 1895, § 5350; R.C. 1899, § 5350; R.C. 1905, § 6936; C.L. 1913, § 7535; R.C. 1943, § 32-0609.
Derivation:
Wait’s (N.Y.) Code, 225; Harston’s (Cal.) Practice, 532.
Note.
This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.
Notes to Decisions
Motion to Vacate.
When an injunction pendente lite has been issued without notice by a court of equity having jurisdiction of the subject matter and of the defendant, the defendant may, at any time under this section, move to vacate it, but until such motion is granted the injunctional order remains in full force. State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 1951 N.D. LEXIS 95 (N.D. 1951), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435, 1970 U.S. LEXIS 52 (U.S. 1970).
Waiver.
Any question about the propriety of the trial court issuing temporary restraining order was waived by failure of defendants to move that it be quashed, and by failure to insist on a dissolution upon hearing, and by the submission of the whole matter for trial on the merits. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).
Collateral References.
Injunction 160-188.
42 Am. Jur. 2d, Injunctions, § 311.
43A C.J.S. Injunctions, §§ 373-377, 379-392.
32-06-10. Counteraffidavits to vacate injunction.
If the application to vacate an injunction is made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavit or other proofs in addition to those on which the injunction was granted.
Source:
C. Civ. P. 1877, § 196; R.C. 1895, § 5351; R.C. 1899, § 5351; R.C. 1905, § 6937; C.L. 1913, § 7536; R.C. 1943, § 32-0610.
Derivation:
Wait’s (N.Y.) Code, 226.
Note.
This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.
Notes to Decisions
Rebutting Affidavits.
The use of rebutting affidavits, upon a motion to vacate the judge’s order granting an injunction, is not contemplated by the statute. McCann v. Mortgage, Bank & Inv. Co., 3 N.D. 172, 54 N.W. 1026, 1893 N.D. LEXIS 11 (N.D. 1893).
32-06-11. Restraining orders — Orders to show cause — Motions.
Upon the hearing on an application for a restraining order, or on an order to show cause, or on a motion, oral testimony will not be received unless the court shall direct otherwise. The moving party shall have the opening and closing of the argument. Upon default of any party to appear, the court nevertheless shall proceed to hear or to dismiss, as the case may be.
Source:
District Court Rule No. 7; R.C. 1943, § 32-0611.
Note.
This section was superseded by N.D.R.Civ.P. 65, effective July 1, 2012.
CHAPTER 32-07 Claim and Delivery
32-07-01. Plaintiff may claim immediate delivery.
The plaintiff in an action to recover the possession of personal property, at the time of issuing the summons or at any time before answer, may claim the immediate delivery of such property as provided in this chapter.
Source:
C. Civ. P. 1877, § 176; R.C. 1895, § 5331; R.C. 1899, § 5331; R.C. 1905, § 6917; C.L. 1913, § 7516; R.C. 1943, § 32-0701.
Derivation:
Wait’s (N.Y.) Code, 206; Harston’s (Cal.) Practice, 509.
Cross-References.
Damages for conversion of personalty, see N.D.C.C. § 32-03-23.
Notes to Decisions
- Damages for Use During Detention.
- Demand.
- Exempt Property.
- Foreclosure Action Distinguished.
- Joint Ownership.
- Jurisdiction.
- Rule 54(b) Determination.
- Special Interest in Property.
Damages for Use During Detention.
In an action of claim and delivery, a party recovering property wrongfully detained from his possession may recover as damages the value of its use during the period of detention where it has a usable value and is not held for sale or consumption. Tooz v. Tooz, 76 N.D. 732, 39 N.W.2d 257, 1949 N.D. LEXIS 94 (N.D. 1949).
Demand.
In an action of claim and delivery to recover possession of buildings, no demand was necessary where plaintiff’s right to recover was contested by the defendant upon a claim of superior right. Myrick v. Bill, 17 N.W. 268, 3 Dakota 284, 1883 Dakota LEXIS 3 (Dakota 1883).
Exempt Property.
An action in claim and delivery will lie to recover property exempt from attachment. Wagner v. Olson, 3 N.D. 69, 54 N.W. 286, 1893 N.D. LEXIS 1 (N.D. 1893); Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757, 1899 N.D. LEXIS 53 (N.D. 1899).
Foreclosure Action Distinguished.
—Law of the Case.
Defendants’ claim they were entitled to jury trial because plaintiff’s action was a legal action for possession of specific property, and not an equitable action for foreclosure, could not be raised following trial court’s decision to the contrary prior to defendants’ first appeal, because the law-of-the-case doctrine encompassed issues decided by the trial court which were not presented for review in prior appeal. Sargent County Bank v. Wentworth, 547 N.W.2d 753, 1996 N.D. LEXIS 154 (N.D. 1996).
Joint Ownership.
Where indivisible property is jointly owned, a co-owner may not recover damages in an action of claim and delivery on account of its detention by another co-owner who has possession of the property. Tooz v. Tooz, 76 N.D. 732, 39 N.W.2d 257, 1949 N.D. LEXIS 94 (N.D. 1949).
Jurisdiction.
One who invokes or submits himself to the jurisdiction of a court cannot later object to the exercise of its jurisdiction on the ground of noncompliance with the statute by the adverse party. Allen v. Bohner, 54 N.D. 14, 208 N.W. 234 (1926), decided prior to the adoption of N.D.R.Civ.P. 12.
Rule 54(b) Determination.
In claim and delivery proceedings, where trial court was not requested to make and did not make an express N.D.R.Civ.P. 54(b) determination, nor was such a determination implicit in the court’s decision, an order granting creditor possession of certain property was not immediately appealable, as there were issues remaining to be determined. Massey-Ferguson Credit Corp. v. Bloomquist, 444 N.W.2d 694, 1989 N.D. LEXIS 176 (N.D. 1989).
Special Interest in Property.
One who is lawfully entitled to the possession of personal property, by virtue of special property therein, may maintain an action to recover the possession thereof. Everett v. Buchanan, 6 N.W. 439, 2 Dakota 249, 1880 Dakota LEXIS 4 (Dakota 1880); Suchy v. Strain, 51 N.D. 106, 199 N.W. 193, 1924 N.D. LEXIS 152 (N.D. 1924).
Collateral References.
Replevin 25.
66 Am. Jur. 2d, Replevin, § 54.
77 C.J.S. Replevin, §§ 42-45.
Sufficiency of proof of possession of defendant at commencement of action, 2 A.L.R.2d 1043.
Credit for upkeep or other expense in computing damages for use or detention of property, 7 A.L.R.2d 933.
Agent: remedy of replevin where agent, employed to purchase personal property, buys it for himself, 20 A.L.R.2d 1140, 1149.
Timber: action against landowner for recovery of possession of cut timber after his revocation of license, 26 A.L.R.2d 1194, 1197.
Use of property: recovery of damages in replevin for value of use of property detained, by successful party having only security interest as conditional vendor, chattel mortgagee, or the like, 33 A.L.R.2d 774.
Availability of replevin or similar possessory action to one not claiming as heir, legatee, or creditor of decedent’s estate, against personal representative, 42 A.L.R.2d 418.
Loss of profits: allowance, in replevin action, of loss of profits from deprivation of use of detained property, 48 A.L.R.2d 1053.
County that may bring replevin, or similar possessory action, 60 A.L.R.2d 487.
Attorneys’ fees, recovery, as damages by successful litigant in replevin or detinue action, 60 A.L.R.2d 945.
Cotenants: maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants, 93 A.L.R.2d 358.
Possession: recovery of value of property in replevin or similar possessory action where defendant, at time action is brought, is no longer in possession of property, 97 A.L.R.2d 896.
Voluntary dismissal of replevin action by plaintiff as affecting defendant’s right to judgment for the return or value of the property, 24 A.L.R.3d 768.
Consumer goods: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.
Comment note: Amount of attorneys’ compensation in absence of contract or statute fixing amount, 57 A.L.R.3d 475.
Prejudgment seizures: modern views as to validity, under federal constitution, of state prejudgment attachment, garnishment, and replevin procedures, distraint procedures under landlords’ or innkeepers’ lien statutes, and like procedures authorizing summary seizure of property, 18 A.L.R. Fed. 223.
32-07-02. Plaintiff’s affidavit.
When a delivery is claimed, an affidavit must be made by the plaintiff, or by someone in the plaintiff’s behalf, stating:
- That the plaintiff is the owner of the property claimed, particularly describing it, or lawfully is entitled to the possession thereof by virtue of a special property therein, the facts in respect to which shall be set forth.
- That the property is detained wrongfully by the defendant.
- The alleged cause of the detention thereof according to the affiant’s best knowledge, information, and belief.
- That the property has not been taken for a tax, assessment, or fine pursuant to a statute, nor seized under an execution or attachment against the property of the plaintiff, or if so seized, that it by statute is exempt from such seizure.
- The actual value of the property.
-
That a court order has been issued authorizing delivery hereunder, and is attached:
- Pursuant to notice to defendant and hearing on an order to show cause; or
-
Without notice to defendant if, in addition to satisfying the requirements for an order to show cause, probable cause appears to the court that:
- The defendant gained possession of the property by theft or fraud;
- The property consists of one or more negotiable instruments or credit cards;
- The property is perishable and will be irreparably damaged before a hearing can be held; or
- The property is in immediate danger of destruction, serious harm, concealment, or removal from the state, or of sale to an innocent purchaser.
Source:
C. Civ. P. 1877, § 177; R.C. 1895, § 5332; R.C. 1899, § 5332; R.C. 1905, § 6918; C.L. 1913, § 7517; R.C. 1943, § 32-0702; S.L. 1973, ch. 260, § 1.
Derivation:
Wait’s (N.Y.) Code, 207; Harston’s (Cal.) Practice, 510.
Collateral References.
Replevin 26-32.
66 Am. Jur. 2d, Replevin, § 43.
77 C.J.S. Replevin, §§ 46-53.
32-07-03. Requisition to sheriff.
The plaintiff, by an endorsement in writing upon the affidavit, may require the sheriff of the county where the property claimed may be to take the same from the defendant and deliver it to the plaintiff.
Source:
C. Civ. P. 1877, § 178; R.C. 1895, § 5333; R.C. 1899, § 5333; R.C. 1905, § 6919; C.L. 1913, § 7518; R.C. 1943, § 32-0703.
Derivation:
Wait’s (N.Y.) Code, 208; Harston’s (Cal.) Practice, 511.
32-07-04. Security by plaintiff.
Upon the receipt of an affidavit and requisition as provided in section 32-07-03 with a written undertaking executed by one or more sufficient sureties approved by the sheriff, to the effect that they are bound in double the value of the property, as stated in such affidavit, for the prosecution of the action for the return of the property to the defendant, if return thereof is adjudged, and for the payment to the defendant of such sum as for any cause may be recovered against the plaintiff, the sheriff forthwith shall take the property described in the affidavit, if it is in the possession of the defendant or the defendant’s agent, and shall retain it in the sheriff’s custody. The sheriff also without delay shall serve on the defendant a copy of the affidavit, requisition, and undertaking by delivering the same to the defendant personally, if the defendant can be found, or to the defendant’s agent from whose possession the property is taken, or if neither can be found, by leaving them at the usual place of abode of either with some person of suitable age and discretion.
Source:
C. Civ. P. 1877, § 179; R.C. 1895, § 5334; R.C. 1899, § 5334; R.C. 1905, § 6920; C.L. 1913, § 7519; R.C. 1943, § 32-0704.
Derivation:
Wait’s (N.Y.) Code, 209; Harston’s (Cal.) Practice, 512.
Cross-References.
Sheriff’s fees, see N.D.C.C. § 11-15-07(6).
Notes to Decisions
- In General.
- Breach of Undertaking.
- Prejudgment Seizure As Drastic Remedy.
- Strict Compliance with Statutes.
- Sufficiency of Defendant As Surety.
- Undertakings with No Sureties.
In General.
The statutory language in this section and N.D.C.C. § 32-07-05 and 7543, C.L. 1913, is similar and the purpose sought to be achieved by them is similar. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).
Breach of Undertaking.
The condition in plaintiff’s undertaking “for the prosecution of the action” is broken if plaintiff fails to prosecute the action to a final determination on the merits, either through his own fault or through the fault of the justice before whom the action is pending in entering a void judgment. Siebolt v. Konatz Sadlery Co., 15 N.D. 87, 106 N.W. 564, 1906 N.D. LEXIS 16 (N.D. 1906).
Prejudgment Seizure As Drastic Remedy.
Prejudgment seizure of a defendant’s property before there has been a determination of the underlying claim and before the defendant has had an opportunity to be heard on the merits of the underlying claim, is a drastic remedy the granting of which demands the utmost caution and sensitivity. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).
Strict Compliance with Statutes.
In view of the magnitude of harm that a plaintiff may visit upon a defendant by obtaining prejudgment possession of the defendant’s property through claim and delivery proceedings, strict compliance with statutes designed to protect the defendant is required. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).
Sufficiency of Defendant As Surety.
Trial court erred in granting secured-creditor defendant prejudgment possession of plaintiff’s machinery and equipment pursuant to this section and N.D.C.C. § 32-07-05 because the replevin bond and written undertaking filed by defendant was executed by defendant only and was not executed by any sureties, even though plaintiff failed to object to the sufficiency of defendant as surety within the three days after service statutory period. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).
Undertakings with No Sureties.
The North Dakota Supreme Court discerns no reason why claim and delivery undertakings with no sureties should be treated any differently than attachment undertakings with no sureties. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).
Collateral References.
Replevin 33.
66 Am. Jur. 2d, Replevin, §§ 44, 45.
77 C.J.S. Replevin, §§ 54-60.
32-07-05. Exceptions by defendant to sufficiency of sureties or amount of undertaking.
The defendant, within three days after the service of a copy of the affidavit, requisition, and undertaking, may give notice to the sheriff that the defendant excepts to the sufficiency of the sureties, or the amount of the undertaking. If the defendant fails to do so, the defendant shall be deemed to have waived all objection to them. When the defendant excepts to the sufficiency of the sureties, the sureties shall justify as provided in chapter 32-02, and the sheriff shall be responsible for the sufficiency of the sureties until the objection to them is either waived as above provided, or until they shall justify or new sureties shall be substituted and shall justify. If the defendant excepts to the sureties, or to the amount of the undertaking, the defendant cannot reclaim the property as provided in section 32-07-06. When the defendant excepts to the amount of the undertaking, the sheriff shall retain possession of the property for five days after the service of notice of such exception upon the sheriff. In such case the defendant, upon two days’ notice to the plaintiff, may apply to the judge of the court in which the action is pending for an order requiring the plaintiff to execute an undertaking in such action in a larger amount than that of the undertaking which has been served. The affidavits upon which the defendant bases the defendant’s application shall be served with the notice. If the application is denied, the order of the court shall direct the sheriff forthwith to deliver the property to the plaintiff. If the application is granted, the order of the court shall direct the sheriff to deliver the property to the defendant unless the plaintiff within a time of not more than four days, to be fixed by the court, shall execute a bond in such sum as the court shall prescribe, with sureties to be approved by the sheriff.
Source:
C. Civ. P. 1877, § 180; R.C. 1895, § 5335; R.C. 1899, § 5335; R.C. 1905, § 6921; C.L. 1913, § 7520; S.L. 1915, ch. 76, § 1; 1925 Supp., § 7520; R.C. 1943, § 32-0705.
Derivation:
Wait’s (N.Y.) Code, 210; Harston’s (Cal.) Practice, 513.
Notes to Decisions
- In General.
- Prejudgment Seizure As Drastic Remedy.
- Strict Compliance with Statutes.
- Sufficiency of Defendant As Surety.
- Undertakings with No Sureties.
In General.
The statutory language in this section and N.D.C.C. § 32-07-04 and 7543, C.L. 1913, is similar and the purpose sought to be achieved by them is similar. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).
Prejudgment Seizure As Drastic Remedy.
Prejudgment seizure of a defendant’s property before there has been a determination of the underlying claim and before the defendant has had an opportunity to be heard on the merits of the underlying claim, is a drastic remedy the granting of which demands the utmost caution and sensitivity. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).
Strict Compliance with Statutes.
In view of the magnitude of harm that a plaintiff may visit upon a defendant by obtaining prejudgment possession of the defendant’s property through claim and delivery proceedings, strict compliance with statutes designed to protect the defendant is required. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).
Sufficiency of Defendant As Surety.
Trial court erred in granting secured-creditor defendant prejudgment possession of plaintiff’s machinery and equipment pursuant to this section and N.D.C.C. § 32-07-04 because the replevin bond and written undertaking filed by defendant was executed by defendant only and was not executed by any sureties, even though plaintiff failed to object to the sufficiency of defendant as surety within the three days after service statutory period. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).
Undertakings with No Sureties.
The North Dakota supreme court discerns no reason why claim and delivery undertakings with no sureties should be treated any differently than attachment undertakings with no sureties. Production Credit Ass'n v. Halverson, 386 N.W.2d 905, 1986 N.D. LEXIS 316 (N.D. 1986).
32-07-06. Redelivery to defendant.
At any time before the delivery of the property to the plaintiff, the defendant, if the defendant does not except to the sureties of the plaintiff or the amount of the plaintiff’s undertaking, may require the return thereof upon giving to the sheriff a written undertaking executed by two or more sufficient sureties to the effect that they are bound in double the value of the property as stated in the affidavit of the plaintiff for the delivery thereof to the plaintiff, if such delivery is adjudged, and for the payment to the plaintiff of such sum as for any cause may be recovered against the defendant. If a return of the property is not so required within three days after the taking and service of notice on the defendant, it shall be delivered to the plaintiff except as provided in section 32-07-10.
Source:
C. Civ. P. 1877, § 181; R.C. 1895, § 5336; R.C. 1899, § 5336; R.C. 1905, § 6922; C.L. 1913, § 7521; R.C. 1943, § 32-0706.
Derivation:
Wait’s (N.Y.) Code, 211; Harston’s (Cal.) Practice, 514.
Notes to Decisions
Amount of Bond.
In claim and delivery action the amount of the redelivery bond of the defendant is fixed by the value of the property as alleged in the affidavit. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).
Farm Machinery.
Farm machinery could not be returned to plaintiff in substantially as good condition as it was when delivered under redelivery bond where it had not been sheltered from the weather. Anderson v. Phillips, 40 N.D. 586, 169 N.W. 315, 1918 N.D. LEXIS 110 (N.D. 1918).
Money Judgment.
Where in a claim and delivery action a money judgment only was recovered, a complaint on the redelivery bond, conditioned as provided by the statute, which alleged merely the nonpayment of the judgment, failed to state a cause of action. Larson v. Hanson, 21 N.D. 411, 131 N.W. 229, 1911 N.D. LEXIS 101 (N.D. 1911); Farmers Nat'l Bank v. Ferguson, 28 N.D. 347, 148 N.W. 1049, 1914 N.D. LEXIS 118 (N.D. 1914).
A redelivery undertaking is not only a substitute for the possession of the property by the plaintiff, but is security for any money judgment recovered. Larson v. Hanson, 26 N.D. 406, 144 N.W. 681, 1913 N.D. LEXIS 74 (N.D. 1913).
Possession by Defendant.
One who gives a forthcoming bond in an action of claim and delivery is estopped from denying that the property was in his possession at the commencement of the action. Warren v. Olson, 46 N.D. 203, 180 N.W. 529, 1920 N.D. LEXIS 65 (N.D. 1920).
Recovery Against Sureties.
In order to recover from sureties on a redelivery undertaking, it is necessary to allege and prove either the due entry of a judgment in the alternative form or facts showing that it was impossible to return the property. Farmers Nat'l Bank v. Ferguson, 28 N.D. 347, 148 N.W. 1049, 1914 N.D. LEXIS 118 (N.D. 1914).
Collateral References.
Replevin 47-50.
66 Am. Jur. 2d, Replevin, § 48.
77 C.J.S. Replevin, §§ 74-79.
32-07-07. Justification.
The defendant’s sureties shall justify in the manner provided in chapter 32-02. Upon such justification the sheriff shall deliver the property to the defendant and the undertaking to the plaintiff. The sheriff shall be responsible for the defendant’s sureties, until they justify, or until justification is completed or expressly waived, and may retain the property until that time, but if they, or others in their place, fail to justify at the time and place appointed, the sheriff shall deliver the property to the plaintiff.
Source:
C. Civ. P. 1877, § 182; R.C. 1895, § 5337; R.C. 1899, § 5337; R.C. 1905, § 6923; C.L. 1913, § 7522; R.C. 1943, § 32-0707.
Derivation:
Wait’s (N.Y.) Code, 212; Harston’s (Cal.) Practice, 515.
Note.
Although N.D.C.C. § 28-30-05 has been superseded by the North Dakota Rules of Civil Procedure, a part of such section has been retained and combined with this section by inserting the words “and the undertaking to the plaintiff” in this section.
32-07-08. Concealed property.
If the property, or any part thereof, is concealed in a building or enclosure, the sheriff publicly shall demand its delivery. If it is not delivered, the sheriff shall cause the building or enclosure to be broken open and shall take the property into the sheriff’s possession, and, if necessary, the sheriff may call to the sheriff’s aid the power of the county.
Source:
C. Civ. P. 1877, § 184; R.C. 1895, § 5339; R.C. 1899, § 5339; R.C. 1905, § 6925; C.L. 1913, § 7524; R.C. 1943, § 32-0708.
Derivation:
Wait’s (N.Y.) Code, 214; Harston’s (Cal.) Practice, 517.
32-07-09. Keeping property.
When the sheriff shall have taken property as in this chapter provided, the sheriff shall keep it in a secure place and shall deliver it to the party entitled thereto upon receiving the sheriff’s lawful fees for taking and the sheriff’s necessary expenses for keeping the same.
Source:
C. Civ. P. 1877, § 185; R.C. 1895, § 5340; R.C. 1899, § 5340; R.C. 1905, § 6926; C.L. 1913, § 7525; R.C. 1943, § 32-0709.
Derivation:
Wait’s (N.Y.) Code, 215; Harston’s (Cal.) Practice, 518.
32-07-10. Claim by third person.
If the property taken is claimed by any person other than the defendant or the defendant’s agent, and such person shall make affidavit of such person’s title thereto and right to the possession thereof, stating the grounds of such right and title, and shall serve the same upon the sheriff, the sheriff shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff on demand shall indemnify the sheriff against such claim by an undertaking executed by two sureties in the amount of the value of the property as specified in the affidavit of the plaintiff. No claim to such property by any person other than the defendant or the defendant’s agent shall be valid against the sheriff, unless made as aforesaid, and notwithstanding such claim, when so made, the sheriff may retain the property a reasonable time to demand such indemnity.
Source:
C. Civ. P. 1877, § 186; R.C. 1895, § 5341; R.C. 1899, § 5341; R.C. 1905, § 6927; C.L. 1913, § 7526; R.C. 1943, § 32-0710.
Derivation:
Wait’s (N.Y.) Code, 216; Harston’s (Cal.) Practice, 519.
Notes to Decisions
Sheriff to Be Indemnified.
It is the duty of the plaintiff, where a claim is made by a third person, to indemnify the sheriff. Welter v. Jacobson, 7 N.D. 32, 73 N.W. 65, 1897 N.D. LEXIS 51 (N.D. 1897).
Collateral References.
Replevin 52
66 Am. Jur. 2d, Replevin, § 42
32-07-11. Papers filed with clerk.
The sheriff shall file the notice and affidavit, with the sheriff’s proceedings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the property mentioned therein.
Source:
C. Civ. P. 1877, § 187; R.C. 1895, § 5342; R.C. 1899, § 5342; R.C. 1905, § 6928; C.L. 1913, § 7527; R.C. 1943, § 32-0711.
Derivation:
Wait’s (N.Y.) Code, 217; Harston’s (Cal.) Practice, 520.
Notes to Decisions
Failure to File Notice and Affidavit.
A sheriff’s failure to file the notice and affidavit with his proceedings thereon after taking property on plaintiff’s requisition does not avoid a claim and delivery proceeding. Bingenheimer Mercantile Co. v. Horning, 63 N.D. 591, 249 N.W. 321, 1933 N.D. LEXIS 209 (N.D. 1933).
32-07-12. Specific personal property — Jury to find value and damages.
In an action for the recovery of specific personal property, the jury shall find by its verdict the facts, as the case may be, as follows:
- In case it finds against the defendant and the property has not been delivered to the plaintiff, it shall find the value of the property, or of the plaintiff’s interest therein, if less than its full value, at the time of the taking, and that the plaintiff is entitled to a delivery of the property, and it also shall assess the damages, if any are claimed in the complaint, which the plaintiff has sustained by reason of the taking and detention of such property.
- In case it finds against the defendant and the property has been delivered to the plaintiff, it also shall assess the damages, if any are claimed in the complaint, which the plaintiff has sustained by reason of the taking and detention of such property.
- In case it finds against the plaintiff and the property has been delivered to the plaintiff, and the defendant in the defendant’s answer claims a return of the property, it shall find the value thereof, or of the defendant’s interest therein, if less than its full value, at the time of the taking, and it also shall assess the damages, if any are claimed in the answer, which the defendant has sustained by reason of the taking and detention of such property.
- In case it finds against the plaintiff and the property has been retained by the defendant, it shall find that the defendant is entitled to such property.
- In case the jury finds that each party is entitled to a specific portion of the property in controversy and such portion has been delivered to the opposite party and a return is claimed in the complaint or answer, it shall find the value of such portion, or of the party’s interest therein, if less than its full value, at the time of the taking, and also shall assess the damages, if any are claimed in the complaint or answer, in favor of the plaintiff or defendant as hereinbefore provided as to the portion to which it finds the plaintiff or defendant entitled.
- Whenever the jury is so instructed, it shall find the value of specific portions of the property in controversy or of the interest of either party therein, if less than its full value, at the time of the taking and also shall assess the damages, if any are claimed by the party in whose favor it finds, sustained by reason of the taking and detention of such property.
Source:
C. Civ. P. 1877, § 263; R.C. 1895, § 5447; R.C. 1899, § 5447; R.C. 1905, § 7036; C.L. 1913, § 7635; R.C. 1943, § 28-1505.
Derivation:
Wait’s (N.Y.) Code, 261; Harston’s (Cal.) Practice, 627.
Note.
The provisions of former N.D.C.C. § 28-15-05 now constitute this section.
Notes to Decisions
Damages.
Damages are recoverable by the prevailing party for the wrongful taking and detaining of personal property. Holt v. Van Eps, 46 N.W. 689, 1 Dakota 206, 1875 Dakota LEXIS 13 (Dakota 1875); Jandt v. South, 47 N.W. 779, 2 Dakota 46, 1878 Dakota LEXIS 9 (Dakota 1878).
Damages for the wrongful taking and detention of property are connected with the subject of the action within the meaning of the provision concerning the form of verdict to be returned in claim and delivery proceedings. McCarty v. Kepreta, 24 N.D. 395, 139 N.W. 992, 1913 N.D. LEXIS 9 (N.D. 1913).
Where trustee in bankruptcy of a mortgagee of personal property commenced an action for possession of the property before the mortgagee was entitled to possession, but subsequently and before the trial the mortgagee became entitled to possession by reason of the maturity of the mortgage, the amount of the debt far exceeding the value of the property, the trustee could be held liable for damages only for retention up to the time of maturity of the mortgage. Smythe v. Muri, 34 N.D. 242, 158 N.W. 264, 1916 N.D. LEXIS 27 (N.D. 1916).
Manufacturer’s seizure, detention, and sale of collateral much in excess of debt owed by the dealer were proper factors to be considered by the jury in determining what damages were sustained. John Deere Co. v. Nygard Equip., 225 N.W.2d 80, 1974 N.D. LEXIS 152 (N.D. 1974).
Judgment in Alternative.
Where it is shown that plaintiff purchased the greater part of goods at an auction sale before trial and can return them to the defendant, the judgment in claim and delivery in favor of the defendant should be in the alternative rather than simply a money judgment. Smith v. Willoughby, 24 N.D. 1, 138 N.W. 7, 1912 N.D. LEXIS 4 (N.D. 1912).
Questions for Jury.
It is unnecessary for the jury to find the value of the property where it is in possession of the plaintiff, who is found to be entitled to the possession. Johnson v. Wagner, 42 N.D. 542, 174 N.W. 73, 1919 N.D. LEXIS 182 (N.D. 1919).
Separate Rights.
The right of a claimant in claim and delivery to have his property or its value, and the right to recover damages for the wrongful taking and detention thereof, are separate rights. Nichols & Shepard Co. v. Paulson, 10 N.D. 440, 87 N.W. 977, 1901 N.D. LEXIS 46 (N.D. 1901).
Collateral References.
Replevin 92-97.
66 Am. Jur. 2d, Replevin, §§ 93 et seq.
CHAPTER 32-07.1 Crime Profits Recovery
32-07.1-01. Profits from the crime of a felon — Definitions — Action to recover profits from the crime — Violations — Remedies cumulative — Limitations of actions.
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As used in this section:
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“Beneficiary” means:
- A person who, under applicable law, other than the provisions of this section, has or had a right to recover damages from the convicted felon for physical, mental, or emotional injury, or pecuniary loss proximately caused by the convicted felon as a result of the crime for which the felon was convicted.
- If a beneficiary has died, a person or estate that is entitled to recover damages.
- If a person has died and the death was proximately caused by the convicted felon as a result of the crime for which the felon was convicted, a person described in chapter 32-21 or any beneficiary of a will of the decedent who had a right under that will to receive more than twenty-five percent of the value of the estate of the decedent.
-
“Beneficiary’s interest in the profits from the crime” means that portion of the profits from the crime necessary to pay the following:
- In the case of a beneficiary described in paragraph 1 or 2 of subdivision a, those damages which, under applicable law, other than the provisions of this section, the beneficiary has a right to recover from the convicted felon for injuries proximately caused by the convicted felon as a result of the crime for which the felon was convicted.
- In the case of the beneficiary described in paragraph 3 of subdivision a, those damages which under all the circumstances of the case may be just.
- “Convicted felon” means any person convicted of a felony, or found not guilty by reason of insanity of a felony committed in this state, either by a court or jury trial or by entry of a plea in court.
- “Felony” means a felony defined by any North Dakota or federal statute.
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“Profits from the crime” means:
- Any property obtained through or income substantially related to the commission of a crime of which the defendant was convicted;
- Any property obtained by or income substantially related to the sale, conversion, or exchange of proceeds of a crime, including any gain realized by the sale, conversion, or exchange; and
- Any property that the convicted felon obtained or income substantially related to the commission of the crime, including any assets obtained through the use of unique knowledge obtained during the commission of, or in preparation for the commission of, the crime, as well as any property obtained by or income substantially related to the sale, conversion, or exchange of such property and any gain realized by such sale, conversion, or exchange.
- “Representative of the felon” means any person or entity receiving profits from the crime by designation of the felon, or on behalf of the felon or in the stead of the felon, whether by the felon’s designation or by operation of law.
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“Beneficiary” means:
- All profits from the crime belonging to the convicted felon are subject to a constructive trust for the benefit of the beneficiaries set forth in this section. The trust continues until six years after the date of conviction. If an action is filed by a beneficiary to recover the beneficiary’s interest in a trust within that time limitation, the trust character of the property continues until the conclusion of the action.
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- Any beneficiary may bring an action against a convicted felon or representative of the felon to recover the beneficiary’s interest in the trust established by this section.
- The action may be brought in the district court where the beneficiary resides, where the convicted felon resides, or where the proceeds are located.
- If the court determines that a beneficiary is entitled to profits from the crime pursuant to this section, the court shall order the payment from profits from the crime that have been received, and if that is insufficient, from profits from the crime that may be received in the future.
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A beneficiary’s interest in the profits from the crime must be reduced by the following amount:
- Money paid to the beneficiary as crime victims reparations under chapter 54-23.4 because of the crime for which the felon was convicted.
- Money paid to the beneficiary by the convicted felon because of a requirement of restitution imposed by a court in connection with the crime for which the felon was convicted.
- Money paid to the beneficiary because of a judgment against the convicted felon based upon the crime for which the felon was convicted.
- In the case of an unsatisfied existing judgment or order of restitution against the convicted felon and in favor of a beneficiary, any money paid to the beneficiary pursuant to this section must be applied to reduce the amount of the unsatisfied judgment or order.
- If there are two or more beneficiaries and the available profits from the crime are insufficient to pay all beneficiaries, the profits from the crime may be equitably apportioned among the beneficiaries taking into account the impact of the crime upon them. Twenty-five percent of the profits from the crime must be reserved for payment to the beneficiaries.
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- The attorney general shall bring an action to require profits from the crime received by a convicted felon to be held in an express trust in a bank authorized to act as a trustee.
- An action may be brought under this subdivision within six months after the receipt of profits from the crime by a convicted felon or six months after the date of conviction, whichever is later. The action must be brought in the district court for Burleigh County.
- If the attorney general proves that the profits from the crime are subject to a constructive trust pursuant to this section and that it is more probable than not that there are beneficiaries within the meaning of this section, the court shall order all proceeds deposited in a bank and held by the bank as trustee of the trust until an order of disposition is made by a court pursuant to subsection 4, or until the expiration of the period specified in subsection 2.
- In any action brought pursuant to subsection 4 or 5, upon motion of a party the court shall grant a preliminary injunction to prevent any waste of the profits from the crime, if it appears that the profits from the crime are subject to the provisions of this section and that they may be subject to waste.
- The remedies provided by this section are in addition to other remedies provided by law. No period of limitations, except those provided by this section, limits the right of recovery under this section.
- The offender or any person contracting with an offender shall notify the attorney general at least thirty days before the transfer of any profits from a crime. A person who willfully violates this subsection is guilty of a class A misdemeanor.
- Any contract between a convicted felon or representative of the felon and another person which provides for the payment of profits from a crime other than as provided by this section is void.
Source:
S.L. 1993, ch. 340, § 1; 1995, ch. 54, § 22.
CHAPTER 32-08 Attachment [Repealed]
[Repealed by S.L. 1977, ch. 301, § 25]
Note.
For present provisions, see chapter 32-08.1.
CHAPTER 32-08.1 Attachment
32-08.1-01. Attachment availability.
Any creditor may attach the property of the creditor’s debtor, in the cases, upon the conditions, and in the manner prescribed in this chapter.
Source:
S.L. 1977, ch. 301, § 1.
Cross-References.
Banks exempt from attachment, see N.D.C.C. § 6-08-06.
Property exempt from all process, see N.D.C.C. § 28-22-01.
Property of insolvent bank exempt from attachment, see N.D.C.C. § 6-07-04.
Seizure of property, see N.D.R.Civ.P. 64.
Notes to Decisions
Constitutionality.
This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).
Although under this chapter, as it read prior to amendment in 1991, a defendant could seek a hearing after an ex parte prejudgment writ of attachment had been issued, there was no statute entitling a defendant to an immediate or prompt full hearing after issuance of the writ at which the plaintiff was required to prove an underlying debt or its amount or even probable cause; therefore, this chapter did not pass constitutional muster. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).
This chapter, as it read prior to amendment in 1991, denied defendant due process of law since, inter alia, N.D.C.C. §§ 32-08.1-02, 32-08.1-03, 32-08.1-05 did not require the plaintiff to show the nature and amount of the claim or demonstrate probable cause to a judge exercising discretion whenever necessary to minimize the likelihood of improvident issuance of a writ. Nor did the statutes require the plaintiff to show any reason why a summary issuance of a writ of attachment was necessary to avoid removal, destruction, or concealment of the property or loss of the plaintiff’s proprietary interests or that there were any other extraordinary situations requiring special protection to a state or creditor interest. The judge’s only duty with respect to the issuance of a writ was to sign it. Only after a writ had been issued was a judge afforded any opportunity for the exercise of judicial discretion, for such things as adjusting the amount of the plaintiff’s bond or vacating or modifying the writ. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).
DECISIONS UNDER PRIOR LAW
Constitutionality.
Former chapter 32-08 did not achieve the constitutional accommodation of the debtor’s and creditor’s conflicting interests required by the U. S. Supreme Court; because of that lack of constitutional accommodation, seizure of debtor’s mobile home was a denial of due process; former chapter 32-08 failed in that: 1) it was not necessary to allege summary attachment was needed to prevent removal, destruction or concealment of property or loss of creditor’s proprietary interests therein; 2) there was not adequate judicial supervision in that warrant could be issued by clerk alone without action by judge; 3) debtor seeking discharge of warrant had to post bond; 4) impact upon debtors in this particular case in physically seizing and removing their sole residence outweighed state’s interest in providing ex parte preliminary relief for creditors. Guzman v. Western State Bank, 516 F.2d 125, 1975 U.S. App. LEXIS 15713 (8th Cir. N.D. 1975).
Actions for Recovery of Money.
Attachment is essentially a legal proceeding and is confined to actions for the recovery of money only. Kohler v. Cole, 79 N.D. 226, 55 N.W.2d 589, 1952 N.D. LEXIS 115 (N.D. 1952).
Allegation of Intent to Cheat Creditor.
Where an attachment is issued upon plaintiff’s allegation in accordance with subsection 4 of this section, and the existence of this ground for attachment is denied by defendant upon a motion to discharge the attachment, plaintiff has the burden of establishing the alleged fraudulent intent as a matter of fact. Quality Builders v. Hahn, 134 N.W.2d 577, 1965 N.D. LEXIS 145 (N.D. 1965).
Bankruptcy Proceedings.
The lien of attachment on the personal property of a bankrupt, set aside as exempt in bankruptcy proceedings, is not discharged by the discharge in bankruptcy. F. Mayer Boot & Shoe Co. v. Ferguson, 19 N.D. 496, 126 N.W. 110, 1910 N.D. LEXIS 50 (N.D. 1910).
In action for purchase price of goods, where property was attached and judgment obtained within four months of filing of petition in bankruptcy, the lien of the attachment and judgment was nullified by the petition. Gray v. Arnot, 31 N.D. 461, 154 N.W. 268, 1915 N.D. LEXIS 200 (N.D. 1915).
Declaratory Judgment.
An action under the declaratory judgment statute, R.C. 1943, ch. 32-23, was not an action wherein an attachment proceeding could be brought under the provisions of this chapter. Kohler v. Cole, 79 N.D. 226, 55 N.W.2d 589, 1952 N.D. LEXIS 115 (N.D. 1952).
Dependent Remedy.
Attachment is a dependent remedy since it cannot exist independent of an action. Gans v. Beasley, 4 N.D. 140, 59 N.W. 714 (1894), distinguished, Baird v. Holie, 61 N.D. 280, 237 N.W. 786, 790 (1931), explained, Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 135 N.W. 180, 40 L.R.A. (n.s.) 566 (1912), decided prior to the adoption of N.D.R.Civ.P. 12.
Description of Property.
Where an attachment is sought under subsection 8 of this section, the property must be specifically described. Weil v. Quam, 21 N.D. 344, 131 N.W. 244, 1911 N.D. LEXIS 105 (N.D. 1911).
False Pretenses.
The ground of attachment set out in subsection 6 of this section is available only when the action is commenced upon a debt which has been assented to by the defendant, and does not apply in an action to recover damages for a tort. Sonnesyn v. Akin, 12 N.D. 227, 97 N.W. 557, 1903 N.D. LEXIS 55 (N.D. 1903).
Fraud and Deceit.
The language of subsection 4 of this section states a single ground for attachment. McCarthy Bros. Co. v. McLean County Farmers Elevator Co., 18 N.D. 176, 118 N.W. 1049, 1908 N.D. LEXIS 110 (N.D. 1908).
On a motion to discharge an attachment, the plaintiff has the burden of establishing fraudulent intent in the disposition of the goods as alleged. Gamble-Robinson Minot Co. v. Mauratis, 55 N.D. 616, 214 N.W. 913, 1927 N.D. LEXIS 133 (N.D. 1927).
Statutory attachment may not issue in a judgment creditor’s equitable action to set aside a fraudulent conveyance. Security Nat'l Bank v. Bothne, 56 N.D. 269, 217 N.W. 148, 1927 N.D. LEXIS 96 (N.D. 1927).
A levy of attachment on property fraudulently transferred by the debtor constitutes election by the creditor to treat the conveyance as void. Holden v. Walker, 63 N.D. 372, 248 N.W. 318, 1933 N.D. LEXIS 192 (N.D. 1933).
Garnishment Distinguished.
Attachment and garnishment are entirely separate and distinct remedies. Park, Grant & Morris v. Nordale, 41 N.D. 351, 170 N.W. 555, 1918 N.D. LEXIS 150 (N.D. 1918).
Growing Crops.
Growing crops are subject to attachment. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).
Mortgage Foreclosure.
A cause of action for the foreclosure of a real estate mortgage will not support the remedy by attachment. A. O. U. W. v. Wahlin, 61 N.D. 383, 237 N.W. 878, 1931 N.D. LEXIS 287 (N.D. 1931).
Money in the possession of the sheriff for the redemption of property sold under a mortgage foreclosure is subject to attachment by the creditor of the holder of the certificate of sale, if no duty rests on the sheriff except to pay the money to such holder. 64 N.D. 727, 256 N.W. 178.
Preference.
Payment by the debtor to one creditor in preference to another is not grounds for attachment. Quality Builders v. Hahn, 134 N.W.2d 577, 1965 N.D. LEXIS 145 (N.D. 1965).
Service of Summons.
Unless the summons in an action is served in the manner prescribed by law within required number of days after a warrant of attachment is issued therein, the writ becomes void and may be set aside on motion. Rhode Island Hosp. Trust Co. v. Keeney, 1 N.D. 411, 48 N.W. 341, 1891 N.D. LEXIS 9 (N.D. 1891).
A summons drawn and signed with the intention that it be served is issued. Smith v. Nicholson, 5 N.D. 426, 67 N.W. 296, 1896 N.D. LEXIS 43 (N.D. 1896).
Sufficiency of Complaint and Affidavit.
An affidavit was insufficient to authorize attachment where it merely stated that defendant had left the state of North Dakota, with intent to cheat and defraud his creditors. Severn v. Giese, 6 N.D. 523, 72 N.W. 922, 1897 N.D. LEXIS 30 (N.D. 1897).
The complaint and affidavit for attachment need not show that the defendant had property within this state subject to attachment. Hemmi v. Grover, 18 N.D. 578, 120 N.W. 561, 1909 N.D. LEXIS 19 (N.D. 1909); Thornley v. Lawbaugh, 31 N.D. 651, 143 N.W. 348, 1913 N.D. LEXIS 85 (N.D. 1913).
Tort Action.
Attachment may issue in a tort action for damages on the ground that defendant is a nonresident. Moen v. Melin, 57 N.D. 630, 223 N.W. 702, 1929 N.D. LEXIS 306 (N.D. 1929).
Vendor’s Lien.
After the delivery of goods sold, a vendor has no lien thereon except by virtue of the levy of an attachment. Gray v. Arnot, 31 N.D. 461, 154 N.W. 268, 1915 N.D. LEXIS 200 (N.D. 1915).
Note.
The following cases were decided under former chapter 32-08, which was declared unconstitutional; see Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).
Collateral References.
Attachment 21-48.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 45 et seq.
7 C.J.S. Attachment, §§ 32-63, 166, 167.
What is an action for “debt” within attachment statute, 12 A.L.R.2d 787.
Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action, 14 A.L.R.2d 420.
Fraudulently contracted debt or fraudulently incurred liability or obligation within purview of statute authorizing attachment on such grounds, what constitutes a, 39 A.L.R.2d 1265, 1268.
Debt, what amounts to, within statute providing for attachment before debt is due, 58 A.L.R.2d 1451.
Alienation of affections or criminal conversation case, attachment in, 67 A.L.R.2d 527.
Liquor license as subject to execution or attachment, 40 A.L.R.4th 927.
Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.
32-08.1-02. Issuance of writ — Hearing and notice requirement — Form and contents.
A writ of attachment may be issued on the request of the plaintiff before final judgment and after a summons and a complaint is filed. Except as provided in section 32-08.1-02.1, the writ may only be issued following a hearing at which the plaintiff shall present the affidavit described in section 32-08.1-03. The court may issue the writ of attachment only if the plaintiff has provided the required affidavit, has executed a sufficient bond as required under sections 32-08.1-03 and 32-08.1-05, and has made a prima facie showing of the right to attachment. The plaintiff shall provide the defendant with a copy of the request for the writ and the accompanying affidavit and notice of the time of the hearing. The writ, if issued, must be directed to the sheriff of some county in which the property of the defendant is supposed to be and must require the sheriff to attach all the property of the defendant within the sheriff’s county, or so much thereof as may be sufficient to satisfy the plaintiff’s demand, together with costs and expenses. The writ must be in the name of the court and be sealed with its seal and signed by its judge.
Source:
S.L. 1977, ch. 301, § 2; 1991, ch. 355, § 1.
Cross-References.
Seizure of property, see N.D.R.Civ.P. 64.
Notes to Decisions
Constitutionality.
This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).
DECISIONS UNDER PRIOR LAW
Note.
The following cases were decided under former chapter 32-08.
Breach of Bond.
The measure of damages for the breach of a forthcoming bond is the value of the property belonging to the defendant which had been seized, or which was subject to seizure under the warrant. Minneapolis Threshing Mach. Co. v. Warner, 52 N.D. 432, 203 N.W. 197, 1925 N.D. LEXIS 38 (N.D. 1925).
Destruction of Writ.
An undertaking to procure a discharge of an attachment destroys the writ. Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, 1890 N.D. LEXIS 39 (N.D. 1890).
Issuance of Warrant.
The warrant of attachment is issued by the clerk in a ministerial capacity upon a verified complaint setting forth a proper cause of action for attachment and upon an affidavit setting forth in the language of the statute one or more statutory grounds for attachment. F. Mayer Boot & Shoe Co. v. Ferguson, 17 N.D. 102, 114 N.W. 1091, 1908 N.D. LEXIS 13 (N.D. 1908).
The provisions of this section are mandatory. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).
Levy Presumed Lawful.
A levy under a warrant of attachment is presumed to be lawful. Linn v. Jackson, 5 N.D. 46, 63 N.W. 208, 1895 N.D. LEXIS 5 (N.D. 1895).
Mortgage Foreclosure.
Money in the possession of the sheriff for the redemption of property sold under a mortgage foreclosure is subject to attachment by the creditor of the holder of the certificate of sale, if no duty rests on the sheriff except to pay the money to such holder. 64 N.D. 727, 256 N.W. 178.
Seizure of Goods.
It is the official duty of the sheriff to attach and safely keep the property which the warrant authorizes him to seize. Kukowski v. Emerson-Brantingham Implement Co., 43 N.D. 333, 175 N.W. 706, 1919 N.D. LEXIS 62 (N.D. 1919).
A sheriff is a proper party defendant in an action to recover goods seized. North v. Peters, 138 U.S. 271, 11 S. Ct. 346, 34 L. Ed. 936, 1891 U.S. LEXIS 2081 (U.S. 1891).
Collateral References.
Attachment 144-158, 191, 192.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 261 et seq.
7 C.J.S. Attachment, §§ 137, 179-191, 193-195, 346-367.
Posting of redelivery bond by defendant in attachment as waiver of damages for wrongful attachment, 57 A.L.R.2d 1376.
32-08.1-02.1. Prehearing attachment — Issuance of order — Notice of hearing.
A writ of attachment may be issued on the plaintiff’s request and prior to the hearing required under section 32-08.1-02 if the plaintiff’s request is accompanied by an affidavit stating the basis and amount of claim against the defendant and describing facts that constitute grounds for attachment under subdivision a, b, c, or d of subsection 1 of section 32-08.1-03. The court may issue the writ prior to the hearing required under section 32-08.1-02 only if the plaintiff demonstrates the probability of success on the merits, the existence of one or more of the grounds specified in subdivision a, b, c, or d of subsection 1 of section 32-08.1-03, and that, due to extraordinary circumstances, the plaintiff’s interests cannot be protected by an appropriate order of the court, other than by directing the prehearing attachment of property. The defendant must be served immediately after the attachment is completed with a copy of the plaintiff’s request for the writ, a copy of the affidavit and all other documents offered in support of the request, and a notice of the availability of a hearing under section 32-08.1-17.
Source:
S.L. 1991, ch. 355, § 2.
DECISIONS UNDER PRIOR LAW
Note.
The following case was decided under former chapter 32-08.
Disposition of Property.
An action may be commenced on a claim not due and an attachment issued against the property of a debtor if it is alleged that a defendant has disposed of his property. Jordan v. Frank, 1 N.D. 206, 46 N.W. 171, 1890 N.D. LEXIS 24 (N.D. 1890).
Collateral References.
Attachment 9.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 261 et seq.
Debt, what amounts to, within statute providing for attachment before debt is due, 58 A.L.R.2d 1451.
32-08.1-03. Basis for attachment.
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Before any writ of attachment may be executed, the plaintiff or someone on the plaintiff’s behalf shall make and attach thereto an affidavit stating the basis and amount of the claim against the defendant, that the same is due upon contract or upon a judgment, and that the affiant knows or has good reason to believe any of the following:
- The defendant is absent from this state, or is concealed therein so that summons cannot be served on the defendant.
- The defendant has disposed of or concealed or is about to dispose of or conceal the defendant’s property or some part thereof with intent to defraud the defendant’s creditors.
- The defendant has removed or is about to remove property out of this state with intent to defraud the defendant’s creditors.
- The defendant fraudulently incurred the obligation respecting which the action is brought.
- The defendant is not a resident of this state.
- The defendant is a foreign corporation or limited liability company or the defendant is a domestic corporation or limited liability company and no officer, manager, or agent thereof on whom to serve the summons exists or resides in this state or can be found.
- The action is against a defendant as principal on an official bond to recover money due the state or to some political subdivision thereof, or that the action is against the defendant as principal upon a bond or other instrument given as evidence of debt for or to secure the payment of money embezzled or misappropriated by such defendant as an officer of the state or of a political subdivision thereof.
- The action is against a defendant to recover purchase money for personal property sold to the defendant, in which case the property must be specifically described, if one of the conditions under subdivision a, e, or i and one of the conditions under subdivision b or c is also alleged.
- The action is against the owner of any motor vehicle for damages alleged to have been caused by the negligence of such owner or the owner’s duly authorized agent, the motor vehicle alleged to have been driven, occupied, or owned by a negligent driver or owner thereof, at the time of such accident, may be attached, if one of the conditions under subdivision a or e and one of the conditions under subdivision b or c is also alleged.
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In tort actions the affidavit must state that a claim for relief in tort exists in favor of the plaintiff and against the defendant, that the damages sustained exceed fifty dollars specifying the amount claimed and either:
- The defendant is not a resident of this state or that the defendant’s residence is unknown and cannot with due diligence be ascertained; or
- The defendant is a foreign corporation or foreign limited liability company.
- An action may be maintained and a writ of attachment issued on a demand not yet due in any case mentioned in this section, except the cases mentioned in subdivision e, f, or g of subsection 1 and the same proceedings in the action shall be had and the same affidavit shall be required as in actions upon matured demands except that the affidavit shall state that the debt is to become due. The bond specified in section 32-08.1-05 shall be for three times the amount demanded. In case an attachment is issued before the maturity of the debt and a defense to such attachment is sustained, the court shall render a judgment for damages and costs against the plaintiff.
Source:
S.L. 1977, ch. 301, § 3; 1985, ch. 82, § 74; 1991, ch. 355, § 3; 1993, ch. 54, § 106.
Notes to Decisions
Constitutionality.
This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).
The fact that, under former subdivision 1 (i) of this section, a defendant was about to move to another county without giving security for an alleged debt, without more, was not among the truly unusual “extraordinary situations requiring special protection to a state or creditor interest,” under the test articulated in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969).Garrison Memorial Hosp. v. Rayer, 453 N.W.2d 787, 1990 N.D. LEXIS 81 (N.D. 1990).
In General.
A judicial decree for sale of property to apply the proceeds on an adjudicated obligation is well within the range of equitable powers of a trial court. Martian v. Martian, 399 N.W.2d 849, 1987 N.D. LEXIS 243 (N.D. 1987).
DECISIONS UNDER PRIOR LAW
Note.
The following cases were decided under former chapter 32-08.
Compliance with Statute.
The remedy by attachment is purely statutory, is harsh and arbitrary, condemns without hearing, and can be used only upon substantial compliance with every requirement of the statute. Birchall v. Griggs, 4 N.D. 305, 60 N.W. 842, 1894 N.D. LEXIS 39 (N.D. 1894).
The provisions of this section are mandatory. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).
Sufficiency of Affidavit.
The affidavit of attachment requires no greater particularity of statement than is required in a pleading. Gans v. Beasley, 4 N.D. 140, 59 N.W. 714 (1894), distinguished, Baird v. Holie, 61 N.D. 280, 237 N.W. 786, 790 (1931), explained, Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 135 N.W. 180, 40 L.R.A. (n.s.) 566 (1912), decided prior to the adoption of N.D.R.Civ.P. 12.
An affidavit must be stated in positive and not alternative language. Birchall v. Griggs, 4 N.D. 305, 60 N.W. 842, 1894 N.D. LEXIS 39 (N.D. 1894).
An affidavit for attachment need not state that the defendant has property, real or personal, in the state subject to levy. Hemmi v. Grover, 18 N.D. 578, 120 N.W. 561, 1909 N.D. LEXIS 19 (N.D. 1909); Moen v. Melin, 57 N.D. 630, 223 N.W. 702, 1929 N.D. LEXIS 306 (N.D. 1929).
The exact language of the statute need not be used in an affidavit for attachment, but the facts must be stated so that a conclusion in the language of the statute would necessarily be drawn. Weil v. Quam, 21 N.D. 344, 131 N.W. 244, 1911 N.D. LEXIS 105 (N.D. 1911).
Sufficiency of Complaint.
A complaint under the Declaratory Judgment Act to obtain a declaration of the rights of the plaintiffs and defendant under a written contract for the sale of land did not set forth a proper cause of action for attachment, since it was not an action to recover money. Kohler v. Cole, 79 N.D. 226, 55 N.W.2d 589, 1952 N.D. LEXIS 115 (N.D. 1952).
Collateral References.
Attachment 77, 111-115, 119, 128, 140-158.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 217-260.
7 C.J.S. Attachment, §§ 72, 83, 92-96, 115, 116, 156, 158-169.
Intent to defraud, sufficiency of affidavit respecting, as against objection that it is a mere legal conclusion, 8 A.L.R.2d 578.
Proof of a fraudulently contracted debt or fraudulently incurred liability or obligation within purview of statute authorizing attachment on such grounds, 39 A.L.R.2d 1265, 1268.
Amendment of attachment or garnishment bond, 47 A.L.R.2d 971.
Law Reviews.
Fresh Start Lien Avoidance Under the Bankruptcy Code Utilizing North Dakota Exemptions, 69 N.D. L. Rev. 203 (1993).
32-08.1-04. Amendment to affidavit.
The affidavit required by section 32-08.1-03 may be amended at any time before the trial by the substitution of a new affidavit containing allegations of facts existing at the time of making the former affidavit.
Source:
S.L. 1977, ch. 301, § 4.
32-08.1-05. Bond — Justification.
Before the writ of attachment shall be executed, a bond on the part of the plaintiff in the sum of at least five hundred dollars executed by sufficient surety shall be delivered to the officer, to the effect that if the defendant recovers judgment the plaintiff shall pay all costs that may be awarded to the defendant and all damages which the defendant may sustain by reason of the attachment. The affidavit of the surety annexed to such bond shall state that the surety is a resident of this state and worth double the sum specified in the bond in property therein above the surety’s debts and exclusive of property exempt from execution. No bond is necessary when this state or any political subdivision thereof is plaintiff.
Source:
S.L. 1977, ch. 301, § 5.
DECISIONS UNDER PRIOR LAW
Note.
The following cases were decided under former chapter 32-08.
Amount of Undertaking.
Interest to accrue in the future should not be considered in determining the amount of the undertaking for attachment. Hemmi v. Grover, 18 N.D. 578, 120 N.W. 561, 1909 N.D. LEXIS 19 (N.D. 1909).
Failure to Give Undertakings.
If the clerk issues a warrant of attachment without an undertaking purporting upon its face to be executed by a surety, the attachment is “irregularly issued” and defendant may move to discharge same. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).
Liability of Sureties.
In an action for damages on an undertaking in attachment, the liability of the sureties is strictly construed. Thompson v. Webber, 29 N.W. 671, 4 Dakota 240, 1886 Dakota LEXIS 14 (Dakota 1886).
Where undertaking for attachment furnished by the plaintiff was for a sufficient amount at the time it was furnished, and an amendment to the complaint in no manner changed the cause of action but merely increased the ad damnum, the sureties upon the attachment bond were not released from liability and the subsequent claim of the larger damages did not invalidate the attachment. MacDonald v. Fitzgerald, 42 N.D. 133, 171 N.W. 879, 1919 N.D. LEXIS 119 (N.D. 1919).
Although surety is ordinarily liable only in event principal has been found liable, rule does not apply to surety under attachment laws; attachment surety became liable on undertaking when attachment was declared void, and attachment defendant could bring action against surety without first obtaining judgment against attachment plaintiff. Renner v. J. Gruman Steel Co., 147 N.W.2d 663, 1966 N.D. LEXIS 148 (N.D. 1966).
Promise to Pay Damages and Costs.
The mere promise of the plaintiff to pay all damages and costs, in the event of a defeat, was not an undertaking under the statute where it was not executed by a surety. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).
Sufficiency.
This statute clearly contemplates an undertaking with a surety, the sufficiency of which, however, the defendant may challenge. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).
Collateral References.
Attachment 128-139.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 530-566.
7 C.J.S. Attachment, §§ 138-176.
Amendment of attachment bond, 47 A.L.R.2d 971.
Taxable costs and disbursements as including expenses for bond, 90 A.L.R.2d 448, 464.
32-08.1-06. Additional security.
In case the defendant is not satisfied with the amount specified in the bond or with the surety the defendant may, upon five days’ notice to the plaintiff, apply to a judge for additional security and such judge may require the plaintiff to give and file another bond, to be approved by the judge, in such sum as the judge shall deem proper, not exceeding the appraised value of the property attached. The surety shall justify as provided in section 32-08.1-05, but if there are more than one surety they may be accepted if they are jointly responsible for the required sum.
Source:
S.L. 1977, ch. 301, § 6.
32-08.1-07. Officer’s return — Action on bond.
The officer executing the writ shall return thereon all the officer’s proceedings and within ten days from receipt of the bond shall file the writ, affidavit, and bond with the clerk of the court.
Source:
S.L. 1977, ch. 301, § 7.
32-08.1-08. Directions to sheriff — Several writs — Limitations on seizure.
- The sheriff shall without delay serve copies of the writ, affidavit, and bond upon the defendant in the same manner as the summons. In the case of a nonresident, a foreign corporation, or a foreign limited liability company, the sheriff shall serve such copies on any agent of such defendant in the county, if any be known to the sheriff. The court may, or on demand of the defendant shall, appoint a competent appraiser to appraise the property of the defendant which is subject to the writ. Copies of the appraisal, if any, and inventory shall be served upon the defendant.
- If two or more writs against the same defendant shall be executed on the same property, an inventory shall be made in but one of the actions, and the sheriff shall endorse on the copy served upon the defendant in the other action a notice that the property attached is the property attached in the action in which the inventory was made, giving the title of such action, and such officer shall state in the officer’s return the fact of such endorsement.
- If the defendant has not filed a special answer, pursuant to section 32-08.1-17, within ten days after notice of the issuance of a writ of attachment, the sheriff shall seize, in the sheriff’s county, so much of the property of the defendant as will satisfy the demand of the plaintiff with costs and expenses. The sheriff shall attach real property and perishable property without delay, notwithstanding the right of the defendant to file a special answer.
Source:
S.L. 1977, ch. 301, § 8; 1983, ch. 374, § 1; 1993, ch. 54, § 106.
32-08.1-09. Attachment of real estate.
To attach real estate the sheriff shall file in the office of the recorder a copy of the writ with the sheriff’s certificate that by virtue of the original writ the sheriff has attached all the interest of the named defendant in such real estate, describing the same.
Source:
S.L. 1977, ch. 301, § 9; 2001, ch. 120, § 1.
32-08.1-10. What may be attached — How attached.
All the property of the defendant, not exempt from execution, may be attached. Personal property shall be attached as upon an execution and the provisions respecting the levy of an execution thereon shall be applicable to an attachment.
Source:
S.L. 1977, ch. 301, § 10.
Collateral References.
Liquor license as subject to execution or attachment, 40 A.L.R.4th 927.
Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.
32-08.1-11. Indemnity to sheriff.
If there is reasonable doubt as to the ownership of the property or as to its liability to be attached, the sheriff may require sufficient security from the plaintiff to indemnify the sheriff for attaching such property.
Source:
S.L. 1977, ch. 301, § 11.
32-08.1-12. Sale of perishable property attached or garnished.
When any property taken on a writ of attachment is likely to depreciate in value before the end of the action or the keeping thereof could cause much loss or expense, the court or a judge may order it sold in such manner as the best interests of the parties demand, and the money realized shall be held by the sheriff in lieu of the property sold.
Source:
S.L. 1977, ch. 301, § 12.
DECISIONS UNDER PRIOR LAW
Note.
The following case was decided under former chapter 32-08.
Livestock.
Livestock is not perishable property. American Commercial Co. v. Randolph, 49 N.D. 476, 191 N.W. 779, 1922 N.D. LEXIS 79 (N.D. 1922).
Collateral References.
Attachment 196.
7 C.J.S. Attachment, § 396.
32-08.1-13. Care of property — Collection of debts.
The officer shall deposit with the court the property seized by the officer and the proceeds of such as shall have been sold to answer any judgment which may be recovered in such action; and shall, subject to the direction of the court or judge, collect and deposit with the court all the debts, credits, and effects of the defendant. The retention, protection, and final disposition of the property must be determined by the court.
Source:
S.L. 1977, ch. 301, § 13; 1991, ch. 356, § 1.
Notes to Decisions
Constitutionality.
This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).
DECISIONS UNDER PRIOR LAW
Note.
The following cases were decided under former chapter 32-08.
Appraisement Proceedings.
The officer may make new levies and extend the levy from time to time over sufficient property to satisfy the writ; but until a levy there is no occasion and no foundation for appraisement proceedings to determine the limitation in value under the exemption law. Bates v. Callender, 16 N.W. 506, 3 Dakota 256, 1883 Dakota LEXIS 2 (Dakota 1883), writ of error dismissed, 127 U.S. 781, 32 L. Ed. 326 (U.S. 1887).
Collection of Debt.
An attachment proceeding to establish a lien to aid in the collection of a debt is purely statutory, and the statute must be strictly complied with. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).
Levy from Time to Time.
A warrant of attachment is not rendered functus officio by the fact that a levy has been made thereunder, but the sheriff, from time to time, may levy until the amount due is satisfied or the final judgment is rendered. MacDonald v. Fitzgerald, 42 N.D. 133, 171 N.W. 879, 1919 N.D. LEXIS 119 (N.D. 1919).
Proceeds of Foreclosure Sale.
Money in the possession of the sheriff for the redemption of property sold under a mortgage foreclosure is subject to attachment by the creditor of the holder of the certificate of sale, if no duty rests on the sheriff except to pay the money to such holder. 64 N.D. 727, 256 N.W. 178.
Collateral References.
Attachment 159-176.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 515-521.
7 C.J.S. Attachment, §§ 203-243.
Validity of attachment of chattels within store or building other than private dwelling, made without removing the goods or without making an entry, 22 A.L.R.2d 1276.
Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment, 28 A.L.R.2d 1213.
Rights of creditors of life insured as to options or other benefits available to him during his lifetime, 37 A.L.R.2d 268.
Estate by entireties: interest of spouse in estate by entireties as subject to attachment lien in satisfaction of his or her individual debt, 75 A.L.R.2d 1172.
Branch bank or main office of bank having branches, attachment and garnishment of funds in, 12 A.L.R.3d 1088.
Family allowance from decedent’s estate as exempt from attachment, garnishment, execution, and foreclosure, 27 A.L.R.3d 863.
Potential liability of insurer under liability policy as subject of attachment, 33 A.L.R.3d 992.
Client’s funds in hands of his attorney as subject of attachment or garnishment by client’s creditor, 35 A.L.R.3d 1094.
32-08.1-14. Bond for release of property — Estoppel.
The defendant may, at any time before judgment, deliver to the officer who attached the defendant’s property a bond executed by two sureties, to the effect that they will, on demand, pay to the plaintiff the amount of the judgment, with all costs, that may be recovered against such defendant in the action, not exceeding the sum specified in the bond with interest. Such a bond shall be in the amount alleged by the plaintiff to be due. The sureties shall justify as provided in section 32-08.1-05, and may be accepted if they are jointly responsible for the required sum.
Source:
S.L. 1977, ch. 301, § 14.
32-08.1-15. Exception to defendant’s sureties — Release of property — Costs.
The officer shall forthwith give the plaintiff a copy of the bond received pursuant to section 32-08.1-14 with notice of the time when the same was delivered to the officer. The plaintiff shall, within three days thereafter, give notice to the officer that the plaintiff objects to the sureties or waives all objections to them. When the plaintiff objects, the sureties shall justify as provided in section 32-08.1-05. The officer shall be responsible for the sufficiency of such sureties and may retain possession of the attached property until they justify or until the objection is waived. Thereafter, the officer shall deliver the property attached to such defendant. If real estate is attached, the sheriff shall file a certificate of the discharge thereof in the office of the recorder. If judgment is for the plaintiff, all the plaintiff’s costs and disbursements on the attachment shall be included in the judgment.
Source:
S.L. 1977, ch. 301, § 15; 2001, ch. 120, § 1.
DECISIONS UNDER PRIOR LAW
Note.
The following cases were decided under former chapter 32-08.
Destruction of Writ.
An undertaking for discharge not only releases the levy but destroys the writ. Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, 1890 N.D. LEXIS 39 (N.D. 1890).
Discharge Bond.
The giving of an undertaking to procure a discharge of an attachment does not merely release the levy but destroys the writ itself, and, thereafter, a motion to dissolve the attachment as being irregularly or improvidently issued will not be entertained. Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, 1890 N.D. LEXIS 39 (N.D. 1890).
The law authorizing a sheriff, in executing a warrant of attachment, to demand indemnity does not apply to an action to recover on a discharge bond. Ravely v. Isensee, 57 N.D. 286, 221 N.W. 38, 1928 N.D. LEXIS 125 (N.D. 1928).
Growing Crop.
The filing in the office of the register of deeds [now recorder] of notice of abandonment of a levy of attachment on a growing crop does not relieve the attaching creditor from damages subsequently accruing to the crop, where no actual notice was given to the owner. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).
Recovery on Discharge Bond.
The law authorizing a sheriff, in executing a warrant of attachment, to demand indemnity does not apply to an action to recover on a discharge bond. Ravely v. Isensee, 57 N.D. 286, 221 N.W. 38, 1928 N.D. LEXIS 125 (N.D. 1928).
Stay of Proceedings.
An undertaking for discharge of an attachment operates as a stay without any order or direction of the trial court or judge. National Bank v. Hanberg, 10 N.D. 383, 87 N.W. 1006, 1901 N.D. LEXIS 55 (N.D. 1901).
Substitute Bond.
A bond given before the appearance of the defendant in an action to foreclose a lien on property to secure the release thereof, after seizure, is a substitute bond and not a discharge bond. Minneapolis Threshing Mach. Co. v. Warner, 52 N.D. 432, 203 N.W. 197, 1925 N.D. LEXIS 38 (N.D. 1925).
Collateral References.
Attachment 191, 225-279.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 540-561.
7 C.J.S. Attachment, §§ 274-280, 283, 284, 346-391, 476-479, 481-524.
32-08.1-16. Vacation or modification of writ.
The court may, at any time before the trial of the action or a release of the property under section 32-08.1-15, vacate or modify the writ of attachment for irregularity or other sufficient cause, upon five days’ notice of motion. The motion therefor may be combined with a motion to increase the plaintiff’s security under section 32-08.1-06.
Source:
S.L. 1977, ch. 301, § 16.
DECISIONS UNDER PRIOR LAW
Note.
The following cases were decided under former chapter 32-08.
Constitutionality.
Although former N.D.C.C. § 32-08-24 was construed in Page v. Steinke, 60 N.D. 685, 236 N.W. 261 (1931) to place on creditor the burden of showing that grounds for attachment warrant actually existed and thus would appear to be similar in scope to Louisiana statute upheld by U. S. Supreme Court, fact that North Dakota statutes required debtor to file bond to obtain a post-seizure discharge hearing was a significant distinction and was one of several reasons cited for holding that former chapter 32-08 did not achieve the requisite constitutional accommodation of the conflicting interests of the debtor and creditor. Guzman v. Western State Bank, 516 F.2d 125, 1975 U.S. App. LEXIS 15713 (8th Cir. N.D. 1975).
Dissolution of Attachment.
The giving of an undertaking to procure a discharge of an attachment does not merely release the levy but destroys the writ itself, and, thereafter, a motion to dissolve the attachment as being irregularly or improvidently issued will not be entertained. Fox v. Mackenzie, 1 N.D. 298, 47 N.W. 386, 1890 N.D. LEXIS 39 (N.D. 1890).
A defendant cannot move for dissolution of an attachment on the sole ground of his nonownership of the attached property. Gilmore v. Olson, 54 N.D. 633, 210 N.W. 341, 1926 N.D. LEXIS 69 (N.D. 1926).
The dissolution of an attachment may be sought for the reason that the ground of attachment alleged in the affidavit does not exist and did not exist when the affidavit was made. Page v. Steinke, 60 N.D. 685, 236 N.W. 261, 1931 N.D. LEXIS 220 (N.D. 1931).
Growing Crop.
The filing in the office of the register of deeds [now recorder] of notice of abandonment of a levy of attachment on a growing crop does not relieve the attaching creditor from damages subsequently accruing to the crop, where no actual notice was given to the owner. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).
Irregularity.
An attachment which appears to have been “irregularly issued” must be discharged. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).
If a clerk issues the warrant without an undertaking, purporting upon its face to be executed by a surety, the attachment is “irregularly issued” and it is, therefore, proper for defendant to move to discharge the same. Golden Valley County v. Curtin, 52 N.D. 372, 203 N.W. 189, 1925 N.D. LEXIS 35 (N.D. 1925).
Motion to Set Aside.
Writ of attachment will be set aside on motion where summons has not been properly served. Rhode Island Hosp. Trust Co. v. Keeney, 1 N.D. 411, 48 N.W. 341, 1891 N.D. LEXIS 9 (N.D. 1891).
The legality of the levy should not be raised on motion to set aside and dismiss the attachment because of defect in proceedings prior to levy. Thornley v. Lawbaugh, 31 N.D. 651, 143 N.W. 348, 1913 N.D. LEXIS 85 (N.D. 1913).
Vacation of Attachment.
The court may vacate an attachment where the affidavit states that the action to recover damages for deceit was false. Sonnesyn v. Akin, 12 N.D. 227, 97 N.W. 557, 1903 N.D. LEXIS 55 (N.D. 1903).
Collateral References.
Attachment 237-239.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 435-472.
7 C.J.S. Attachment, §§ 491-494.
Appealability, prior to final judgment, of order discharging or vacating attachment or refusing to do so, 19 A.L.R.2d 640.
32-08.1-17. Answer to writ — Trial.
Within ten days after notice of the issuing of a writ of attachment against the defendant’s property, the defendant may, by special answer, deny the existence, at the time of the making of the attachment affidavit, of the material facts stated in the affidavit and may assert undue hardship as a defense. The court shall try the issue so raised before the trial of the action, but in no event later than fourteen days after the writ of attachment is issued. The plaintiff has the burden of proving the conditions for issuance of the prehearing writ of attachment as described in section 32-08.1-02.1. If the defendant has made an assignment for the benefit of the defendant’s creditors, the defendant’s assignee may answer and defend pursuant to this section.
Source:
S.L. 1977, ch. 301, § 17; 1991, ch. 355, § 4.
Notes to Decisions
Constitutionality.
This chapter, as it read prior to the 1991 amendments, was held unconstitutional, as it denied due process to debtors. Garrison Mem. Hosp. v. Rayer, 453 N.W.2d 787 (N.D. 1990).
32-08.1-18. Trial or special answer.
In making its determination of the issue raised by the special answer, the court shall consider any undue hardship on the defendant that would result from an issuance of the warrant. If the court finds for the defendant, the judge presiding shall tax the defendant’s costs of such trial and an order shall be entered dismissing the writ or that the property attached be delivered to the defendant. The jury or the court shall, on the trial of the action or thereafter, assess the damages sustained by the defendant by reason of the taking and detention or sale of the property attached or by reason of any injury thereto. The same, together with the costs so taxed, shall be a setoff to the plaintiff’s demand, and if in excess of it, or the plaintiff fails to recover, the defendant shall have judgment for the amount due. If the court on the trial of such special issue finds for the plaintiff, the presiding judge shall tax the plaintiff’s costs of such trial, and the amount so taxed shall, if the plaintiff recovers, be taxed by the clerk as disbursement in the action. If the defendant or the defendant’s assignee recovers judgment in the action, said costs and the judgment shall be offset.
Source:
S.L. 1977, ch. 301, § 18.
32-08.1-19. Damages — When defendant to recover.
If the defendant prevails in the action or if the action be discontinued, the defendant shall have judgment for the damages sustained by the defendant for any damages to the defendant’s property by reason of the taking and detention or sale thereof.
Source:
S.L. 1977, ch. 301, § 19.
32-08.1-20. Return of property — Damages on dismissal — Entry in recorder’s office.
When the defendant recovers judgment, all the money or property held by any writ of attachment shall be delivered to the defendant, subject to the plaintiff’s rights on appeal, and the defendant may maintain an action on the plaintiff’s bond for the assessed damages sustained by reason of the writ of attachment. Upon the entry of final judgment in favor of the defendant or on satisfaction of a plaintiff’s judgment, the clerk of court shall, if real estate was attached, certify the fact of such judgment or satisfaction, and on filing such certificate with the recorder in any county in which attached lands are situated, such recorder shall enter such certificate upon the records of the recorder’s office in discharge of such attachments.
Source:
S.L. 1977, ch. 301, § 20; 2001, ch. 120, § 1.
Notes to Decisions
Release of Attachment.
Where trial court released attachment on property upon motion by the parties so the property could be sold, and the parties entered into an agreement whereby the proceeds from the sale would be placed in escrow subject to the order of the trial court, the North Dakota attachment law did not apply to the disposition of the escrow funds. McMerty v. Herzog, 702 F.2d 127, 1983 U.S. App. LEXIS 29792 (8th Cir. N.D. 1983).
32-08.1-21. Judgment for plaintiff — How satisfied.
When the plaintiff recovers judgment in the action, the sheriff or officer shall satisfy the same out of the property attached, if sufficient therefor:
- By paying over to such plaintiff all money attached or received upon sales of property, or upon any debts or credits, or so much thereof as shall be necessary.
- By selling, under such execution as may be issued on such judgment, so much of the attached property, real or personal, as shall be necessary to satisfy the balance unpaid, according to the provisions regulating sales upon execution, except as provided in subsection 4.
- If any of the attached property belonging to the defendant is not in the sheriff’s hands, without having been sold or converted into money, by repossessing the same, and for that purpose, the sheriff shall have all the authority which the sheriff had to seize the same under the writ of attachment. Any person who shall willfully conceal or withhold such property from the sheriff shall be liable to double damages at the suit of the party injured.
- Until the judgment against the defendant shall be paid, by proceeding to collect the evidences of debt that may have been seized or attached by virtue of the writ of attachment, and to prosecute any bond the sheriff may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment and costs. When the judgment and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the residue of the property attached, or the proceeds thereof.
Source:
S.L. 1977, ch. 301, § 21.
Cross-References.
Liability of sheriff for failure to levy or sell property on writ of execution or attachment, see N.D.C.C. § 11-15-17.
Seizure of property, see N.D.R.Civ.P. 64.
Notes to Decisions
Due Process.
Due process did not require that notice of execution and levy be given to any party taking an interest in the attached real property after the notice of attachment had been filed; due process was satisfied by the filing of the notice of attachment, and any party acquiring an interest after that time took the interest subject to the notice of attachment. Texaco Oil Co. v. Mosser, 299 N.W.2d 191, 1980 N.D. LEXIS 306 (N.D. 1980), overruled, Geostar Corp. v. Parkway Petroleum, 495 N.W.2d 61, 1993 N.D. LEXIS 12 (N.D. 1993).
DECISIONS UNDER PRIOR LAW
Note.
The following cases were decided under former chapter 32-08.
Compliance with Statute.
A lien of an attachment is ineffectual until the levy is made in compliance with the statute. Mott v. Holbrook, 28 N.D. 251, 148 N.W. 1061 (1914), distinguished, Sox v. Miracle, 35 N.D. 458, 160 N.W. 716 (1916), Crosson v. Kartowitz, 43 N.D. 466, 175 N.W. 868, 1919 N.D. LEXIS 69 (N.D. 1919) and Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933); Zimmerman v. Boynton, 59 N.D. 112, 229 N.W. 3, 1930 N.D. LEXIS 129 (N.D. 1930).
An attachment proceeding to establish a lien to aid in the collection of a debt is purely statutory, and the statute must be strictly complied with. Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).
Conditional Jurisdiction.
The levy of a warrant of attachment gives the court a conditional jurisdiction over the subject matter of the action. Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 135 N.W. 180, 1912 N.D. LEXIS 53 (N.D. 1912).
Growing Crop.
The filing of a notice of levy in the office of the register of deeds [now recorder] of the county where the crop is situated, and service on the person having custody of the crop is sufficient levy of attachment on a growing crop. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).
Neglect of Official Duty.
The failure of an officer to deliver a copy of the execution to the person from whom personal property is taken renders the levy void. Langer v. Nultemeier, 55 N.D. 132, 212 N.W. 817, 1926 N.D. LEXIS 44 (N.D. 1926).
The failure of a sheriff to file the required inventory and return within twenty days after the seizure of attached property renders the attachment void. Summerfield v. Paulson, 68 N.D. 161, 278 N.W. 248, 1938 N.D. LEXIS 91 (N.D. 1938).
Notice of Levy.
Service on defendant of a notice of levy of an execution on land is not necessary. Finch, Van Slyck & McConville v. Jackson, 57 N.D. 17, 220 N.W. 130, 1928 N.D. LEXIS 90, 1928 N.D. LEXIS 91 (N.D. 1928).
Personal Property Incapable of Manual Delivery.
A levy on personal property incapable of manual delivery must be made under a warrant of attachment in strict compliance with the statute. Ireland v. Adair, 12 N.D. 29, 94 N.W. 766, 1903 N.D. LEXIS 7 (N.D. 1903).
Personal Property in Safety Deposit Box.
A judgment debtor’s personal property in a safety deposit box leased by him from a bank is subject to levy on execution, whether it is considered to be in possession of such debtor as a lessee or in possession of the bank as bailee. O'Connor v. McManus, 71 N.D. 88, 299 N.W. 22, 1941 N.D. LEXIS 139 (N.D. 1941).
Real Property.
The interest of a vendee under an executory contract for the purchase of school land from the state of North Dakota is subject to levy as real property. Sox v. Miracle, 35 N.D. 458, 160 N.W. 716, 1916 N.D. LEXIS 174 (N.D. 1916).
Where judgment was docketed in the district court and became a lien upon the property of the judgment debtors, including the property covered by the mortgage sought to be foreclosed in that action, notice of levy to be filed and recorded in the office of the register of deeds [now recorder] was not required in order to make a valid levy. Winslow v. Klundt, 51 N.D. 808, 201 N.W. 169, 1924 N.D. LEXIS 85 (N.D. 1924).
A sheriff’s failure to file with the register of deeds [now recorder] a notice of attachment stating the amount of plaintiff’s claim renders the attachment void. Zimmerman v. Boynton, 59 N.D. 112, 229 N.W. 3, 1930 N.D. LEXIS 129 (N.D. 1930).
Where the court’s jurisdiction depends on a valid attachment of a nonresident’s realty, and other portions of the record show the levy void, the import of verity from recitals is destroyed, and the judgment is void. Zimmerman v. Boynton, 59 N.D. 112, 229 N.W. 3, 1930 N.D. LEXIS 129 (N.D. 1930).
Collateral References.
Attachment 159-176, 195, 217-224.
7 C.J.S. Attachment, §§ 203-213, 221, 222, 392-395, 543-547.
Estoppel of or waiver by parties or participants as to irregularities or defects in sale, 2 A.L.R.2d 6, 78.
32-08.1-22. Action by sheriff — Who to prosecute.
The actions herein authorized to be brought by the sheriff or officer may be prosecuted by the plaintiff or under the plaintiff’s direction, upon the delivery by the plaintiff to the sheriff or officer of an undertaking, with two sufficient sureties, to the effect that the plaintiff will indemnify the sheriff or officer for all damages, costs, and expenses thereon not exceeding five hundred dollars in any one action. Such sureties shall, when required by the sheriff or officer, justify by making an affidavit that each is worth double the amount of the penalty named in the undertaking over and above all debts and exemptions.
Source:
S.L. 1977, ch. 301, § 22.
32-08.1-23. Execution after defendant’s death.
If any defendant whose property is attached shall die and the judgment is in favor of the plaintiff, the property attached shall be applied to the payment of the judgment and execution may be issued on such judgment and satisfied out of the property so attached in the same manner as if such defendant were living.
Source:
S.L. 1977, ch. 301, § 23.
32-08.1-24. Stranger may intervene.
Any person not a party to the action, whose property is attached, may, at any time, either before or after judgment, be made a party upon application for the purpose of removing or discharging the attachment. The court may grant such summary relief as shall be just, and may in proper cases try appropriate issues by jury.
Source:
S.L. 1977, ch. 301, § 24.
DECISIONS UNDER PRIOR LAW
Note.
The following cases were decided under former chapter 32-08.
Application of Statute.
The statute applies to a case where the property of a third person is levied upon while in possession of the attachment debtor under such circumstances as to raise a presumption that it is owned by him. Probstfield v. Hunt, 17 N.D. 572, 118 N.W. 226, 1908 N.D. LEXIS 87 (N.D. 1908).
Burden of Proof.
Where both the title and possession of the property levied upon are in dispute, the burden of proof is upon the plaintiff to establish the title and right of possession at the time of the levy. Wipperman Mercantile Co. v. Robbins, 23 N.D. 208, 135 N.W. 785, 1912 N.D. LEXIS 76 (N.D. 1912).
Growing Crop.
The filing in the office of the register of deeds [now recorder] of notice of abandonment of a levy of attachment on a growing crop does not relieve the attaching creditor from damages subsequently accruing to the crop where no actual notice was given to the owner. Kelly v. Stockgrowers Credit Corp., 66 N.D. 209, 263 N.W. 717, 1935 N.D. LEXIS 189 (N.D. 1935).
Indemnity from Attaching Creditor.
A sheriff executing a warrant of attachment in case of an adverse claim may demand indemnity from the attaching creditor. Ravely v. Isensee, 57 N.D. 286, 221 N.W. 38, 1928 N.D. LEXIS 125 (N.D. 1928).
The sheriff may require an indemnifying undertaking from a levying creditor where a third-party claim is asserted, and may release the levy if the undertaking is not furnished. Kelly v. Baird, 64 N.D. 346, 252 N.W. 70, 1934 N.D. LEXIS 205 (N.D. 1934).
Notice.
The giving of the notice prescribed by the statute is not necessary where a sheriff attaches and sells property in the possession of and owned by a third person not named in the writ. Aber v. Twichell, 17 N.D. 229, 116 N.W. 95, 1908 N.D. LEXIS 48 (N.D. 1908).
Sufficiency of Third-Party Claim.
A third-party claim under the provisions of this section sufficiently alleges ownership if it states that at all times, including the time of seizure, the property was and still is the property of the claimants, that the ground of their right and title to the possession of the property is that they purchased the same with their own money and paid therefor, without stating from whom the property was acquired or the consideration paid. Coverdell v. Erickson, 39 N.D. 579, 168 N.W. 367, 1918 N.D. LEXIS 58 (N.D. 1918).
Collateral References.
Attachment 280 et seq.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 587 et seq.
7 C.J.S. Attachment, §§ 409 et seq.
CHAPTER 32-09 Garnishment [Repealed]
[Repealed by S.L. 1981, ch. 350, § 2]
Note.
For present provisions, see chapter 32-09.1.
CHAPTER 32-09.1 Garnishment
32-09.1-01. Definitions.
In this chapter, unless the context or subject matter otherwise requires:
- “Defendant” means every judgment debtor.
- “Disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by other law to be withheld.
- “Earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program. “Earnings” does not include social security benefits or veterans’ disability pension benefits, except when the benefits are subject to garnishment to enforce any order for the support of a dependent child. “Earnings” includes military retirement pay.
- “Person” includes an individual, an individual’s personal representative or other fiduciary, any two or more persons having a joint or common interest, a partnership, an association, a corporation, a limited liability company, and any other legal or commercial entity.
- “Plaintiff” means every judgment creditor.
Source:
S.L. 1981, ch. 350, § 1; 1985, ch. 350, § 2; 1993, ch. 54, § 106.
Notes to Decisions
Earnings.
The term “earnings” does not have the broad dictionary meaning that includes “business profits.” Friedt v. Moseanko, 498 N.W.2d 129, 1993 N.D. LEXIS 57 (N.D. 1993).
Earnings.
Under N.D.C.C. § 32-09.1-01(3), a client’s payments to an attorney’s professional corporation is not compensation paid or payable for personal services. Because fees paid or payable to a professional law corporation are not earnings under the statute, as a matter of law a 10-day notice is not required under N.D.C.C. § 32-09.1-04 before issuing a garnishee summons. PHI Fin. Servs. v. Johnston Law Office, P.C., 2020 ND 22, 937 N.W.2d 885, 2020 N.D. LEXIS 7 (N.D. 2020).
Collateral References.
Garnishment of funds payable under building and construction contract, 16 A.L.R.5th 548.
Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.
Law Reviews.
States — Federal Law as Superseding State Legislation — North Dakota Garnishment and Execution of Judgment Statutes Are Preempted Insofar as They Frustrate the Consumer Credit Protection Act, 50 N.D. L. Rev. 762 (1974).
North Dakota’s New Rules Respecting Garnishment and the Property Exempt Therefrom, 58 N.D. L. Rev. 183 (1982).
32-09.1-02. Creditors may proceed by garnishment.
Any creditor is entitled to proceed by garnishment in any court having jurisdiction of the subject of the action against any person, any public corporation, the United States, the state of North Dakota, or any institution, department, or agency of the state, indebted to or having any property in possession or under control, belonging to the creditor’s debtor after securing a judgment against the debtor in a court of competent jurisdiction, in the cases, upon the conditions, and in the manner prescribed in this chapter. A garnishment action brought pursuant to this chapter is the exclusive procedure which may be used to execute on earnings of a debtor while those earnings are held by a third-party employer.
Source:
S.L. 1981, ch. 350, § 1; 1983, ch. 375, § 1.
Cross-References.
Seizure of property, see N.D.R.Civ.P. 64.
Notes to Decisions
In General.
A judgment creditor may proceed by garnishment against any person after securing a judgment against such person in a court of competent jurisdiction. In re Da-Sota Elevator Co., 135 B.R. 873, 1991 Bankr. LEXIS 1976 (Bankr. D.N.D. 1991).
Legislative Intent.
The elimination of the execution requirement in the garnishment statutes suggests the legislature favors cost reduction and simplification of the process for both parties. Mid-Dakota Clinic, P.C. v. Kolsrud, 1999 ND 244, 603 N.W.2d 475, 1999 N.D. LEXIS 255 (N.D. 1999).
Out of State Judgment.
North Dakota law applied to wages and lease payments received by debtor, and subject to garnishment, as a result of an Arizona judgment transferred to North Dakota through N.D.C.C. ch. 28-20.1. American Standard Life & Accident Ins. Co. v. Speros, 494 N.W.2d 599, 1993 N.D. LEXIS 1 (N.D. 1993).
DECISIONS UNDER PRIOR LAW
Counties.
The terms “any public corporation” and “agency of the state” as used in this section includes a county. United Accounts v. Dachtler, 100 N.W.2d 93, 1959 N.D. LEXIS 119 (N.D. 1959).
Death of Defendant.
Garnishment proceedings are dissolved by the death of the defendant before judgment is rendered. First Nat'l Bank v. Rohlik, 66 N.D. 72, 262 N.W. 458, 1935 N.D. LEXIS 173 (N.D. 1935).
Determination of Issues.
Plaintiff desiring to proceed to trial with the garnishment action and obtain a determination of the issues raised therein must first obtain a judgment in the main action. First Nat'l Bank v. Young, 63 N.D. 667, 249 N.W. 771, 1933 N.D. LEXIS 221 (N.D. 1933).
Principal and Agent.
An agent may be liable for property in his possession belonging to his principal through garnishment proceedings. Dakota Nat'l Bank v. Brodie, 46 N.D. 247, 176 N.W. 738, 1920 N.D. LEXIS 1 (N.D. 1920).
Proceedings in Another State.
In an action against A in one state, the pendency of garnishment proceedings against A in another state is no defense if it appears that at the time the actions were commenced A knew that the defendant in the garnishment proceedings instituted did not own the claim against A, so that A had a perfect defense in the garnishment proceedings. Purcell v. St. Paul Fire & Marine Ins. Co., 5 N.D. 100, 64 N.W. 943 (N.D. 1895).
Situs of Debt.
The situs of a debt for the purpose of garnishment is not necessarily the domicile of the creditor. Bingenheimer Mercantile Co. v. Weber, 49 N.D. 312, 191 N.W. 620, 1922 N.D. LEXIS 57 (N.D. 1922).
Title to Property or Indebtedness.
In a garnishment action, plaintiff’s right to recover against the garnishee is predicated entirely upon defendant’s right to recover in his own name, and for his own use, against the garnishee. Unless the defendant can so recover, neither can the plaintiff. Shortridge v. Sturdivant, 32 N.D. 154, 155 N.W. 20, 1915 N.D. LEXIS 50 (N.D. 1915).
The plaintiff in a garnishment action can obtain no greater or better title to the property or indebtedness garnished than that possessed by the defendant in the main action. Hatcher v. Plumley, 38 N.D. 147, 164 N.W. 698, 1917 N.D. LEXIS 24 (N.D. 1917).
A plaintiff cannot place himself, by garnishment, in a position superior to defendant’s position. Retterath v. Smith, 60 N.D. 83, 232 N.W. 606, 1930 N.D. LEXIS 211 (N.D. 1930).
Venue of Action.
A garnishment action is ancillary to the main action, and should be brought in the county in which the main action is brought. Ruchverg v. Russell, 71 N.D. 658, 3 N.W.2d 459, 1942 N.D. LEXIS 100 (N.D. 1942).
The statutes relating to the place of trial of civil actions are not changed or affected by providing for a garnishment action. Ruchverg v. Russell, 71 N.D. 658, 3 N.W.2d 459, 1942 N.D. LEXIS 100 (N.D. 1942).
Wage Earner Exemption.
The exemption which may be claimed by a wage earner in a garnishment suit ancillary to an action to enforce the collection of a bill for groceries and provisions was fixed by former N.D.C.C. §§ 32-09-01, 32-09-02, and 32-09-03 (see now this section), and N.D.C.C. § 28-25-11 relating to exemptions from execution has no application. Radke v. Padgett, 49 N.D. 405, 192 N.W. 97, 1922 N.D. LEXIS 70 (N.D. 1922).
Collateral References.
Garnishment 1, 11.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 45 et seq.
38 C.J.S. Garnishment, §§ 19-22.
Residence of partnership for purposes of statutes authorizing garnishment on grounds of nonresidence, 9 A.L.R.2d 471.
What is an action for “debt” within garnishment statute, 12 A.L.R.2d 787.
Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action, 14 A.L.R.2d 420.
Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment, 28 A.L.R.2d 1213.
Rights of creditors of life insured as to options or other benefits available to him during his lifetime, 37 A.L.R.2d 268.
Right of garnishee, other than bank holding deposit, to set off claims not due or certain when garnishment is served, 57 A.L.R.2d 700.
Sharecropper’s share in crop wholly or partly unharvested as subject to garnishment, 82 A.L.R.2d 858.
Indebted to garnishee-employer, garnishment of salary, wages, or commissions where defendant debtor is, 93 A.L.R.2d 995.
Funds deposited in court as subject of garnishment, 1 A.L.R.3d 936.
Branch bank or main office of bank having branches, attachment and garnishment of funds in, 12 A.L.R.3d 1088.
Client’s funds in hands of his attorney as subject of attachment or garnishment by client’s creditor, 35 A.L.R.3d 1094.
Liability insurer’s potential liability for failure to settle claim against insured as subject to garnishment by insured’s judgment creditors, 60 A.L.R.3d 1190.
Executor or administrator, garnishment against, by creditor of estate, 60 A.L.R.3d 1301.
Banks: post-Snidach status of banker’s right to set off bank’s claim against depositor’s funds, 65 A.L.R.3d 1284.
Law Reviews.
Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).
32-09.1-03. Restriction on garnishment of earnings.
-
The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment may not exceed the lesser of:
- Twenty-five percent of disposable earnings for that week.
- The amount by which disposable earnings for that week exceed forty times the federal minimum hourly wage prescribed by section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended [Pub. L. 95-151; 91 Stat. 1245; 29 U.S.C. 206] or any equivalent multiple thereof prescribed by regulation by the secretary of labor in case of earnings for any pay period other than a week, in effect at the time the earnings are payable.
- The maximum amount subject to garnishment under subsection 1 for any workweek must be reduced by twenty dollars for each dependent family member residing with the garnishment debtor. Within ten days after receipt of the garnishment summons, the garnishment debtor shall provide to the employer a list, signed under penalty of perjury by the garnishment debtor, of the names and social security numbers, if any, of the dependents who reside with the garnishment debtor. If the garnishment debtor fails to provide the list, it is presumed that the garnishment debtor claims no dependents, but the garnishment debtor may provide the list at a later date, in which case the exemptions claimed will be in effect for amounts subject to garnishment after the date the list is provided.
-
The restrictions of subsection 1 do not apply in the case of:
- Any order of any court for the support of any person.
- Any order of any court of bankruptcy under chapter XIII of the Bankruptcy Act.
- Any debt due for any state or federal tax.
-
The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person may not exceed:
- If such individual is supporting a spouse or dependent child other than a spouse or child with respect to whose support such order is used, fifty percent of the individual’s disposable earnings for that week; and
- If such individual is not supporting a spouse or dependent child other than a spouse or child with respect to whose support such order is used, sixty percent of the individual’s disposable earnings for that week;
- No court of this state may make, execute, or enforce any order or process in violation of this section.
except that, with respect to the disposable earnings of any individual for any workweek, the fifty percent specified in subdivision a must be deemed to be fifty-five percent and the sixty percent specified in subdivision b must be deemed to be sixty-five percent, if and to the extent that the earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.
Source:
S.L. 1981, ch. 350, § 1; 1989, ch. 411, § 1; 1991, ch. 357, § 1; 2007, ch. 289, § 1.
Cross-References.
Wages — Exemption restricted, see N.D.C.C. § 28-22-18.
Notes to Decisions
Applicability.
North Dakota law applied to wages and lease payments received by debtor, and subject to garnishment, as a result of an Arizona judgment transferred to North Dakota through N.D.C.C. ch. 28-20.1. American Standard Life & Accident Ins. Co. v. Speros, 494 N.W.2d 599, 1993 N.D. LEXIS 1 (N.D. 1993).
Income that a N.D.C.C. ch. 7 debtor earned through self-employment in a consulting business was not considered wages under N.D.C.C. § 28-22-18, and the debtor could not claim the income earned pre-petition as an exemption under N.D.C.C. § 32-09.1-03. In re Domitrovich, 2008 Bankr. LEXIS 99 (Bankr. D.N.D. Jan. 10, 2008).
DECISIONS UNDER PRIOR LAW
Law Governing.
The exemption which may be claimed by a wage earner in a garnishment suit ancillary to an action to enforce the collection of a bill for groceries and provisions was fixed by former N.D.C.C. §§ 32-09-01, 32-09-02, and 32-09-03 (see now this section), and N.D.C.C. § 28-25-11 relating to exemptions from execution has no application. Radke v. Padgett, 49 N.D. 405, 192 N.W. 97, 1922 N.D. LEXIS 70 (N.D. 1922).
Purpose of Exemption.
The provision of 1925 Supp., § 7567, that wages or salary of the head of a family residing in the state to the amount of fifteen dollars per week should be exempt from garnishment, was intended to give immediate relief from any hardship which might result from tying up wages due the head of a family pending a garnishment proceeding, but it was not intended to deprive defendant of any exemptions which he might claim in his defense to the garnishment proceedings in court. Imperial Elevator Co. v. Warren, 56 N.D. 329, 217 N.W. 523, 1928 N.D. LEXIS 220 (N.D. 1928).
Collateral References.
Exemptions 48, 49.
30 Am Jur 2d Executions and Enforcement of Judgments § 566; 31 Am Jur 2d Exemptions § 47; 6 Am Jur 2d Attachment and Garnishment §§ 174-182.
35 C.J.S. Exemptions, §§ 43, 47-50.
32-09.1-04. Notice before garnishment of earnings — Notice of renewal of garnishment of earnings.
- At least ten days before the issuance of any garnishee summons against the earnings of any person, the creditor shall serve upon the debtor a notice that a garnishee summons may be issued. The notice must be served personally or by first-class mail. Failure to serve the notice renders any subsequent garnishment void. The notice must be in substantially the following form:
- As an alternative to subsection 1, if a creditor renews an expiring continuing lien on wages under section 32-09.1-21, at least ten days but no more than twenty days before the expiration of the continuing lien on wages, the creditor may serve upon the debtor a notice that a garnishee summons may be reissued for a continuing lien on wages under section 32-09.1-21. The notice must be served personally or by first-class mail. Failure to serve the notice renders any subsequent garnishment void. The notice must be in substantially the following form:
- In addition to the notice required under subsection 1 or 2, the creditor shall serve a garnishment debtor’s list in substantially the following form under the caption of the case:
To: Date: Debtor Please take notice that a garnishee summons that will require part of your wages to be withheld may be served upon your employer, without any further court proceedings or notice to you, at any time after ten days following the date of this notice. For each dependent family member residing with you, the amount subject to garnishment for any workweek may be reduced by twenty dollars, if within ten days after receipt of the garnishee summons you provide to your employer a list signed by you, under penalty of perjury, of the dependent family members residing with you and their social security numbers, if any. If you provide the list of dependents after the ten-day period, the exemptions you claim will apply only to the amounts subject to garnishment after the date you provide the list. You may wish to contact the undersigned judgment creditor or attorney to arrange for the settlement of the debt, which is $. Judgment Creditor Address
Click to view
To: Date: Debtor Please take notice that a garnishee summons that will require part of your wages to be withheld may be served upon your employer without any further court proceedings or notice to you. This action is a renewal of the current garnishment order for this case. For each dependent family member residing with you, the amount subject to garnishment for any workweek may be reduced by twenty dollars, if within ten days after receipt of the garnishee summons you provide to your employer a list signed by you, under penalty of perjury, of the dependent family members residing with you and their social security numbers, if any. If you provide the list of dependents after the ten-day period, the exemptions you claim will apply only to the amounts subject to garnishment after the date you provide the list. You may wish to contact the undersigned judgment creditor or attorney to arrange for the settlement of the debt, which is $. Judgment Creditor Address
Click to view
To: Garnishee I, under penalty of perjury, (garnishment debtor) certify and affirm that the following persons are my dependents and they reside in my household and I claim the garnishment exemptions as provided by NDCC 32-09.1-03(2): NameSocial Security Number Dated this day of , . Garnishment Debtor
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Source:
S.L. 1981, ch. 350, § 1; 1991, ch. 357, § 2; 2005, ch. 296, § 1; 2007, ch. 289, § 2.
Notes to Decisions
Garnishee.
Where the creditor is garnishing wages, the garnishee is the debtor’s employer. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).
Issuance Date of Garnishee Summons.
The issuance of the garnishee summons is construed to be the date the summons is served upon the debtor’s employer. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).
Notice.
Under N.D.C.C. § 32-09.1-01(3), a client’s payments to an attorney’s professional corporation is not compensation paid or payable for personal services. Because fees paid or payable to a professional law corporation are not earnings under the statute, as a matter of law a 10-day notice is not required under N.D.C.C. § 32-09.1-04 before issuing a garnishee summons. PHI Fin. Servs. v. Johnston Law Office, P.C., 2020 ND 22, 937 N.W.2d 885, 2020 N.D. LEXIS 7 (N.D. 2020).
Where Garnishee Is Interested Person.
Employer-garnishee in this particular garnishment action was an interested person and therefore not qualified under the rules to personally serve papers upon the employee-debtor. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).
Collateral References.
Garnishment 90-103.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 387, 388.
38 C.J.S. Garnishment, §§ 149-165.
Garnishee’s duty to give debtor notice of garnishment prior to delivery of money without judgment against the garnishee on the debt, 36 A.L.R.4th 824.
Sufficiency, as to content, of notice of garnishment required to be served upon garnishee, 20 A.L.R.5th 229.
32-09.1-05. Service on office of management and budget — Fees.
Service upon the state of North Dakota, or any state institution, department, or agency, as garnishee, may be made upon the director of the office of management and budget, or the director’s authorized designee, in the manner provided by law for service in garnishment proceedings, including the fee to be tendered and paid the office of management and budget for making and filing an affidavit of disclosure in the amount of twenty-five dollars. The fee must be deposited in the state treasury.
Source:
S.L. 1981, ch. 350, § 1; 2005, ch. 297, § 1; 2011, ch. 245, § 1.
Effective Date.
The 2011 amendment of this section by section 1 of chapter 245, S.L. 2011 became effective April 18, 2011, pursuant to an emergency clause in section 2 of chapter 245, S.L. 2011, as added by section 23, chapter 41, S.L. 2011.
DECISIONS UNDER PRIOR LAW
Time of Filing.
Under 1925 Supp., § 7571a2, summons and affidavit for garnishment could be filed in the office of the clerk of the court in which the garnishment proceeding was commenced before making service on garnishee. Storing v. Stutsman, 56 N.D. 531, 218 N.W. 223, 1928 N.D. LEXIS 168 (N.D. 1928).
32-09.1-06. Garnishee summons.
In any action in a court of record for the recovery of money, at any time after judgment, a garnishee summons may be issued against any third person as provided in this chapter. The plaintiff and defendant shall be designated. The person against whom the summons is issued shall be designated garnishee.
Source:
S.L. 1981, ch. 350, § 1.
32-09.1-07. Form of summons and notice.
-
The garnishee summons must state:
-
That the garnishee shall serve upon the plaintiff or the plaintiff’s attorney within twenty days after service of the garnishee summons:
- A written disclosure, under oath, of indebtedness to the defendant; and
- Answers, under oath, to all written interrogatories that are served with the garnishee summons.
- The full name of the defendant, the defendant’s place of residence, the date of the entry of judgment against the defendant, the total amount of the judgment which remains unpaid, and the retention amount. The retention amount is the sum of the amount of the judgment which remains unpaid, one hundred twenty-five dollars, and an amount equal to nine months of interest on the amount of the judgment which remains unpaid.
- That the garnishee shall retain property, earnings, or money in the garnishee’s possession pursuant to this chapter until the plaintiff causes a writ of execution to be served upon the garnishee or until the defendant authorizes release to the plaintiff.
- That after the expiration of the period of time specified in section 32-09.1-20, the garnishee shall release all retained property, earnings, and money to the defendant and is discharged and relieved of all liability on the garnishee summons.
- That an employer may not discharge an employee because the employee’s property, earnings, or money are subject to garnishment.
- That any assignment of wages made by the defendant or indebtedness to the garnishee incurred within ten days before the receipt of notice of the first garnishment on the underlying debt is void.
- That the defendant must provide to the garnishee within ten days after receipt of the garnishee summons a list of the dependent family members who reside with the defendant and their social security numbers, if any, to have the maximum amount subject to garnishment reduced under subsection 2 of section 32-09.1-03.
- That failure of the defendant to provide a list to the garnishee within ten days after receipt of the garnishee summons is conclusive with respect to whether the defendant claims no family members.
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That the garnishee shall serve upon the plaintiff or the plaintiff’s attorney within twenty days after service of the garnishee summons:
- Under subdivision a of subsection 1, the plaintiff may not require the garnishee to disclose indebtedness or property of the defendant in the garnishee’s possession or under the garnishee’s control to the extent that the indebtedness or property exceeds the retention amount.
- The garnishee summons and notice to defendant must be substantially in the following form:
State of North Dakota County of In Court ss. Plaintiff against Defendant and Garnishee Garnishee Summons and Notice to Defendant The State of North Dakota to the above-named Garnishee: You shall serve upon the plaintiff or the plaintiff’s attorney, within twenty days after service of this summons upon you, a written disclosure, under oath, setting forth the amount of any debt you may owe to the defendant, (give full name and residence of defendant) and a description of any property, money, or effects owned by the defendant which are in your possession. Your disclosure need not exceed $. (Enter retention amount.) The date of entry of the judgment against the defendant was (enter date of entry of plaintiff’s judgment) and the amount of the judgment that remains unpaid is $. The defendant shall provide you with a list of the names of dependent family members who reside with the defendant and their social security numbers if the defendant desires to have the garnishment amount reduced under subsection 2 of . Failure of the defendant to provide the list to you is conclusive to establish that the defendant claims no dependent family members reside with the defendant. section 32-09.1-03 Failure to disclose and withhold may make you liable to the plaintiff for the sum of $. (Enter the retention amount.) You shall retain the defendant’s nonexempt property, money, earnings, and effects in your possession until a writ of execution is served upon you, until the defendant authorizes release to the plaintiff, or until the expiration of 360 days from the date of service of this summons upon you. If no writ of execution has been served upon you or no agreement has been made for payment within 360 days, the garnishment ends and any property or funds held by you must be returned to the defendant if the defendant is otherwise entitled to their possession. Any assignment of wages by the defendant or indebtedness to you incurred by the defendant within ten days before the receipt of the first garnishment on a debt is void and should be disregarded. You may not discharge the defendant because the defendant’s earnings are subject to garnishment. Dated , . By: NOTICE TO DEFENDANT To: The garnishee summons, garnishment disclosure form, and written interrogatories (strike out if not applicable), that are served upon you, were also served upon , the garnishee. (Attorneys for Plaintiff) (Address) (Telephone)
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Source:
S.L. 1981, ch. 350, § 1; 1991, ch. 357, § 3; 1991 Sp., ch. 885, § 1; 1999, ch. 51, § 17; 1999, ch. 302, § 1; 2003, ch. 278, § 2; 2007, ch. 289, § 3; 2007, ch. 171, § 1.
Notes to Decisions
Right to Claim Exemptions.
There is no statutory requirement to notify a debtor of the right to claim exemptions when the garnishee summons is served on the debtor, comparable to the requirement for an execution levy. Friedt v. Moseanko, 498 N.W.2d 129, 1993 N.D. LEXIS 57 (N.D. 1993).
Collateral References.
Garnishment 93.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 374-388.
38 C.J.S. Garnishment, § 152.
Sufficiency, as to content, of notice of garnishment required to be served upon garnishee, 20 A.L.R.5th 229.
32-09.1-08. Service.
- The garnishee summons and notice to defendant shall be served upon the garnishee in the same manner as other summons in that court of record except that service must be personal.
- Service of a garnishee summons and disclosure statement upon a bank or credit union must be made by delivery of the summons and disclosure statement to a specifically named president or vice president of the bank or credit union or to the registered agent for service of process of the bank or credit union. Delivery of the summons and disclosure statement to the specifically named individual may be in hand as established by the sworn affidavit of the individual who delivered the summons and disclosure statement or by any form of mail or third-party commercial delivery service, if delivery is restricted to the named individual or registered agent and the sender receives a receipt signed by that individual or registered agent.
- A plaintiff shall serve with the garnishee summons a disclosure form, substantially as set out in this chapter. The plaintiff may also serve interrogatories with the garnishee summons. A copy of the garnishee summons and copies of all other papers served on the garnishee must be served personally upon the defendant in accordance with the North Dakota Rules of Civil Procedure for personal service or served by first-class mail not later than ten days after service is made upon the garnishee. A single garnishee summons may be addressed to two or more garnishees but must state whether each is summoned separately or jointly.
Source:
S.L. 1981, ch. 350, § 1; 1991, ch. 358, § 1; 2013, ch. 252, § 1.
Effective Date.
The 2013 amendment of this section by section 1 of chapter 252, S.L. 2013 became effective April 11, 2013, pursuant to an emergency clause in section 2 of chapter 252, S.L. 2013.
Notes to Decisions
Garnishee.
Where the creditor is garnishing wages, the garnishee is the debtor’s employer. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).
Where Garnishee Is Interested Person.
Employer-garnishee in this particular garnishment action was an interested person and therefore not qualified under the rules to personally serve papers upon the employee-debtor. In re Heilman, 39 B.R. 492, 1984 Bankr. LEXIS 5809 (Bankr. D.N.D. 1984).
DECISIONS UNDER PRIOR LAW
Failure to Serve.
The law does not authorize a justice of the peace to issue a second summons in a case where the first summons fails to be served in time, nor does such right exist in a case where a garnishment action has been instituted ancillary to an ordinary action in justice court. Searl v. Shanks, 9 N.D. 204, 82 N.W. 734, 1900 N.D. LEXIS 210 (N.D. 1900).
Joining Issue.
Although this section provides that “unless the garnishee summons is so served on the defendant * * * the service on the garnishee shall become void and of no effect from the beginning”, this does not prevent the defendant from joining issue on what had been done. Roe v. Hetherington, 74 N.D. 692, 24 N.W.2d 56, 1946 N.D. LEXIS 93 (N.D. 1946).
Validity of Service.
The garnishment action is instituted by service of the garnishee summons and affidavit for garnishment upon the garnishee, but such service becomes null and void unless these papers are, also, served upon the defendant either before or within ten days after service on the garnishee. Park, Grant & Morris v. Nordale, 41 N.D. 351, 170 N.W. 555, 1918 N.D. LEXIS 150 (N.D. 1918); Citizens' State Bank v. Smeland, 48 N.D. 466, 184 N.W. 987, 1921 N.D. LEXIS 65 (N.D. 1921).
Waiver of Service.
The defendant may waive the service of the garnishment papers upon him. Roe v. Hetherington, 74 N.D. 692, 24 N.W.2d 56, 1946 N.D. LEXIS 93 (N.D. 1946).
Collateral References.
Garnishment 95, 101.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 381-386.
38 C.J.S. Garnishment, §§ 156, 164.
Who may serve writ, summons, or notice of garnishment, 75 A.L.R.2d 1437.
Law Reviews.
The Proposed North Dakota Rules of Civil Procedure, 32 N.D. L. Rev. 88 (1956).
32-09.1-09. Disclosure.
- Within the time as limited in the garnishee summons, the garnishee shall serve upon the plaintiff or the plaintiff’s attorney written answers, under oath, to the questions in the garnishment disclosure form and to any written interrogatories that are served upon the garnishee. The amount of the garnishee’s disclosure need not exceed the retention amount. The written answers may be served personally or by mail. If disclosure is by a corporation or limited liability company, it must be verified by an officer, a manager, or an agent having knowledge of the facts.
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Disclosure must state:
- The amount of disposable earnings earned or to be earned within the defendant’s pay periods which may be subject to garnishment and all of the garnishee’s indebtedness to the defendant.
- Whether the garnishee held, at the time, the title or possession of or any interest in any personal property or any instruments or papers relating to any property belonging to the defendant or in which the defendant is interested. If the garnishee admits any interest or any doubt respecting the interest, the garnishee shall set forth a description of the property and the facts concerning the property and the title, interest, or claim of the defendant in or to the property.
- If the garnishee claims any setoff or defense or claim or lien to disposable earnings, indebtedness, or property, the garnishee shall disclose the amount and the facts.
- Whether the defendant claims any exemption from execution or any other objection, known to the garnishee or the defendant, against the right of the plaintiff to apply upon demand the debt or property disclosed.
- If other persons make claims to any disposable earnings, debt, or property of the defendant, the garnishee shall disclose the names and addresses of the other claimants and, so far as known, the nature of their claims.
- A garnishment disclosure form must be served upon the garnishee. The disclosure must be substantially in the following form, subject to subsection 3 of section 32-09.1-03:
State of North Dakota County of Plaintiff vs. Defendant and Garnishee In Court ss. Garnishment Disclosure I am the of the garnishee and duly authorized to disclose for the garnishee. On , , the time of service of garnishee summons on the garnishee, there was due and owing the defendant from the garnishee the following: 1. Earnings. For the purposes of garnishment, “earnings” means compensation payable for personal service whether called wages, salary, commission, bonus, or otherwise, and includes periodic payments under a pension or retirement program. “Earnings” does not include social security benefits or veterans’ disability pension benefits, except when the benefits are subject to garnishment to enforce any order for the support of a dependent child. “Earnings” includes military retirement pay. “Disposable earnings” means that part of the earnings of an individual remaining after the deduction from those earnings of amounts required by law to be withheld. If the garnishee summons was served upon you at a time when earnings from a prior completed pay period were owing but not paid, complete the following disclosure for earnings from both the past pay period and the current pay period. 2. Money. Any amounts due and owing to defendant from the garnishee, except for earnings. (amount and facts) 3. Property. Any personal property, instruments, or papers belonging to the defendant and in the possession of the garnishee. (description, estimated value, and facts) 4. Adverse interest and setoff. Any setoff, defense, lien, or claim by the garnishee or other persons by reason of ownership or interest in the defendant’s property. You must state the name and address and the nature of that person’s claim if known. (Any assignment of wages made by the defendant or any indebtedness to a garnishee within ten days before the receipt of the first garnishment on a debt is void and should be disregarded.) 5. Dependent. Any family member of the defendant who is residing in the defendant’s residence. (If properly claimed after receipt of the garnishee summons.) 6. Earnings worksheet: a. Total earnings in pay period b. Federal tax c. State tax d. FICA (social security/Medicare) e. Total deductions (lines b+c+d) f. Disposable earnings (line a less line e) g. Twenty-five percent of line f h. Minimum wage exemption (minimum wage times forty hours times number of weeks in pay period) i. Line f less line h j. Line g or line i (whichever is less) k. Dependent exemption (twenty dollars per dependent per week, if claimed) l. Adverse interest or setoff m. Total of lines k and l n. Line j less line m (the amount of earnings subject to garnishment) 7. Total of property, earnings, and money. The garnishee shall add the total of property, earnings, and money and if this sum is ten dollars or more, the garnishee shall retain this amount, not to exceed the retention amount identified by the plaintiff in the garnishee summons. Signature Garnishee or Authorized Representative of Garnishee Title Subscribed and sworn to before me on , . Notary Public
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Source:
S.L. 1981, ch. 350, § 1; 1985, ch. 350, § 3; 1991, ch. 357, § 4; 1993, ch. 54, § 106; 1999, ch. 51, § 18; 2001, ch. 306, § 1; 2005, ch. 298, § 1; 2007, ch. 289, § 4; 2007, ch. 171, § 2.
DECISIONS UNDER PRIOR LAW
Application of Statute.
Where plaintiff never took any issue with the statements, allegations, or matter set up in affidavits of garnishee, all of the statements in the affidavits were conclusive of the truth of the facts therein stated. Brocket Mercantile Co. v. Lemke Imperial Elevator Co., 39 N.D. 37, 166 N.W. 800, 1918 N.D. LEXIS 8 (N.D. 1918).
Joining in Issue.
The plaintiff need not take issue upon a garnishee’s answer which admits that the garnishee has sufficient money to satisfy the claim. Mahon v. Fansett, 17 N.D. 104, 115 N.W. 79, 1907 N.D. LEXIS 6 (N.D. 1907).
Jury Trial.
An issue triable to a jury in a civil action is triable to a jury in a garnishment action, and is not triable anew in the supreme court. Ruble v. Saretzke, 63 N.D. 631, 249 N.W. 716, 1933 N.D. LEXIS 215 (N.D. 1933).
Collateral References.
Garnishment 140, 148.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 395, 396.
32-09.1-10. Disclosure fees.
In all garnishment proceedings, the plaintiff, when the garnishee summons is served upon the garnishee, shall tender to the garnishee the sum of twenty-five dollars as the fee for making an affidavit of disclosure.
Source:
S.L. 1981, ch. 350, § 1; 2005, ch. 297, § 2.
32-09.1-11. Effect of disclosure.
Subject to the provisions of sections 32-09.1-12 and 32-09.1-13, the disclosure is conclusive as to all property of the defendant. If the garnishee denies having any indebtedness to the defendant or having any property of the defendant in possession, the filing in court of a copy of the disclosure operates as a full discharge of the garnishee at the end of twenty days from the date of service of the disclosure, in the absence of further proceedings as provided for in sections 32-09.1-12 and 32-09.1-13. The filing of objections to the disclosure or the filing of any motion or other proceedings operates as a stay of the discharge. The court may, upon proper showing, relieve the plaintiff from the operation of the discharge after the expiration of twenty days. The garnishee may be discharged where the value of the property of the defendant held or indebtedness owing to the defendant is less than ten dollars, and the garnishee may apply to the court to be discharged as to any property or indebtedness in excess of the amount which may be required to satisfy the plaintiff’s judgment.
Source:
S.L. 1981, ch. 350, § 1.
DECISIONS UNDER PRIOR LAW
Denial Conclusive Unless Issue Joined.
When the garnishee serves an affidavit that he has no property in his hands belonging to the defendant, that fact becomes conclusive unless issue is joined thereon by the plaintiff. Mahon v. Fansett, 17 N.D. 104, 115 N.W. 79, 1907 N.D. LEXIS 6 (N.D. 1907).
If a garnishee files an affidavit denying liability as provided in this section, the proceedings against the garnishee are discontinued, unless within thirty days after the filing of such affidavit the plaintiff notifies garnishee that he elects to take issue on his answer to the garnishee summons in which case the issue stands for trial as a civil action. Imperial Elevator Co. v. Warren, 56 N.D. 329, 217 N.W. 523, 1928 N.D. LEXIS 220 (N.D. 1928).
Collateral References.
Garnishment 139, 142, 148.
38 C.J.S. Garnishment, §§ 209, 214, 223.
32-09.1-12. Oral disclosure — Supplemental complaint.
Either before or after written disclosure, any party to the garnishment proceedings may obtain an ex parte order requiring oral disclosure. The order may be obtained upon affidavit showing, upon information and belief, facts justifying the order, and the court shall require the garnishee to appear for oral examination before the court. If the garnishee holds the garnished property by a title that is void as to the defendant’s creditors, the garnishee may be charged for the property although the defendant could not have maintained an action against the garnishee for it; but in this, and in all other cases in which the garnishee denies liability, the plaintiff may move the court at any time before the garnishee is discharged, on notice to both the defendant and the garnishee, for leave to file a supplemental complaint making the garnishee a party to the action, and setting forth the facts upon which the plaintiff claims to charge the garnishee. If probable cause is shown, the motion shall be granted. The supplemental complaint must be served upon both defendant and garnishee, either or both of whom may answer, and the plaintiff may reply. The issues must be brought to trial and tried as in other actions.
Source:
S.L. 1981, ch. 350, § 1.
Notes to Decisions
Probable Cause Not Shown.
Plaintiff failed to show by evidence probable grounds for believing that insurer might be held liable under policy issued by liability insurer which had refused to defend tortfeasor with whom plaintiff had settled, where the record did not contain any affidavits, admissions, answers to interrogatories, or depositions submitted by plaintiff in support of her motion to file supplemental complaint joining insurer as garnishee. Medd v. Fonder, 543 N.W.2d 483, 1996 N.D. LEXIS 43 (N.D. 1996).
No probable cause existed for the plaintiff funnel inventors’ motion to file a supplemental complaint to be granted under N.D.C.C. § 32-09.1-12 against a manufacturer’s commercial general liability insurer where inventors’ alleged damages stemmed from the insured manufacturer’s failure to properly assemble the entire funnel and thus, the insurer’s commercial general liability policy’s product and work exclusions precluded coverage for the alleged damage to the brass inserts and various other parts and equipment that the inventors provided to the manufacturer in the manufacturing process; for purposes of the policy exclusion, product and work included all of the various parts and assembly of the funnel. Peterson v. Dakota Molding, Inc., 2007 ND 144, 738 N.W.2d 501, 2007 N.D. LEXIS 147 (N.D. 2007).
32-09.1-13. Third party may intervene.
If it appears that any person not a party to the action has or claims an interest in any of the garnished property antedating the garnishment, the court may permit that person to appear and maintain that person’s rights. If the person does not appear, the court may direct that the person be notified to appear or be barred of the claim. The notice may be served in a manner as the court directs, and the person appearing or notified shall be joined as a party and is bound by judgment against the garnishee.
Source:
S.L. 1981, ch. 350, § 1.
32-09.1-14. Default.
If any garnishee who is duly summoned willfully fails to serve disclosure as required in this chapter, the court, upon proof by affidavit of the creditor, may render judgment against the garnishee for an amount not exceeding the lesser of the plaintiff’s judgment against the defendant or the retention amount as defined under section 32-09.1-07. The creditor shall serve the garnishee with a copy of the affidavit and a notice of intent to take default judgment. The court upon good cause shown may remove the default and permit the garnishee to disclose on terms as may be just.
Source:
S.L. 1981, ch. 350, § 1; 2001, ch. 306, § 2; 2005, ch. 297, § 3; 2007, ch. 290, § 3.
Notes to Decisions
Good Cause.
The “good cause” standard in this section does not conflict with N.D.R.Civ.P. 60(b), but simply describes the more liberal application of “excusable neglect” under Rule 60(b) for relief from a default judgment against a garnishee. Murdoff v. Murdoff, 517 N.W.2d 402, 1994 N.D. LEXIS 123 (N.D. 1994).
Vacation of Default Judgment.
The trial court did not abuse its discretion by finding both lack of gross neglect and good cause to vacate a wife’s default judgment, where the wife filed a garnishment summons and disclosure on a company which she believed owed her husband money to collect a divorce judgment. Although the company’s failure to return the disclosure form did not comply with N.D.C.C. § 32-09.1-09, the disclosure form itself described how it could dispute any indebtedness to the husband, and the company was no stranger to legal procedures and should have known a response was required, the trial court determined that it’s nondisclosure was the result of an honest mistake, not gross neglect or recklessness. Murdoff v. Murdoff, 517 N.W.2d 402, 1994 N.D. LEXIS 123 (N.D. 1994).
DECISIONS UNDER PRIOR LAW
Effect of Default.
Where the garnishee was in default under this section, the plaintiff was entitled to judgment against him for the amount of the judgment he was entitled to recover against the defendant. Enderlin Farmers Store Co. v. Withliff, 56 N.D. 380, 217 N.W. 537, 1928 N.D. LEXIS 223 (N.D. 1928); Storing v. Stutsman, 56 N.D. 531, 218 N.W. 223, 1928 N.D. LEXIS 168 (N.D. 1928).
Collateral References.
Garnishment 152-155, 178.
38 C.J.S. Garnishment, §§ 224, 254.
32-09.1-15. Judgment against garnishee.
Judgment against a garnishee must be rendered, if at all, for the amount due the defendant, or so much thereof as may be necessary to satisfy the plaintiff’s judgment against the defendant, with costs taxed and allowed in the proceeding against the garnishee but not to exceed the retention amount defined under section 32-09.1-07. The judgment must discharge the garnishee from all claims of all the parties named in the process to the property, earnings, or money paid, delivered, or accounted for by the garnishee by force of the judgment. When a person is charged as garnishee by reason of any property in possession other than an indebtedness payable in money, that person shall deliver the property, or so much of the property as may be necessary, to the officer holding execution, and the property must be sold and the proceeds accounted for in the same manner as if the property had been taken on execution against the defendant. The garnishee may not be compelled to deliver any specific articles at any time or place other than as stipulated in the contract with the defendant.
Source:
S.L. 1981, ch. 350, § 1; 2007, ch. 290, § 4.
DECISIONS UNDER PRIOR LAW
Death of Defendant.
Death of defendant before rendition of a judgment against him dissolves garnishment proceedings in action against the defendant. First Nat'l Bank v. Rohlik, 66 N.D. 72, 262 N.W. 458, 1935 N.D. LEXIS 173 (N.D. 1935).
Entry.
A default judgment cannot be entered against garnishee defendants until a valid judgment against the principal defendant is entered. ATWOOD v. TUCKER, 26 N.D. 622, 145 N.W. 587, 1914 N.D. LEXIS 157 (N.D. 1914).
Exempt Property.
A garnishee could plead as a defense to garnishment that the property in his possession is exempt to the defendant. Congress Candy Co. v. Farmer, 73 N.D. 174, 12 N.W.2d 796, 1944 N.D. LEXIS 52 (N.D. 1944).
Measurement of Liability.
The garnishee’s liability is measured by his responsibility and relation to the defendant. Hatcher v. Plumley, 38 N.D. 147, 164 N.W. 698, 1917 N.D. LEXIS 24 (N.D. 1917).
Superior Position.
A plaintiff cannot place himself, by garnishment, in a position superior to defendant’s position. Hatcher v. Plumley, 38 N.D. 147, 164 N.W. 698, 1917 N.D. LEXIS 24 (N.D. 1917); Retterath v. Smith, 60 N.D. 83, 232 N.W. 606, 1930 N.D. LEXIS 211 (N.D. 1930).
Validity.
A judgment entered against both defendant and garnishee by default was void where it was entered without jurisdiction. ATWOOD v. TUCKER, 26 N.D. 622, 145 N.W. 587, 1914 N.D. LEXIS 157 (N.D. 1914).
Collateral References.
Garnishment 105-116, 174-185, 234-238.
6 Am. Jur. 2d, Attachment and Garnishment, §§ 417 et seq.
38 C.J.S. Garnishment, §§ 172-190, 242-255, 293-295.
Form of judgment against garnishee respecting obligation payable in installments, 7 A.L.R.2d 680.
Garnishment in action on note or bond, not resulting in sale of mortgaged property, as precluding foreclosure of real estate mortgage, 37 A.L.R.2d 959.
Right of garnishee, other than bank holding deposit, to set off claims not due or certain when garnishment is served, 57 A.L.R.2d 700.
Branch bank or main office of bank having branches, attachment and garnishment of funds in, 12 A.L.R.3d 1088.
Banks: post-Snidach status of banker’s right to set off bank’s claim against depositor’s funds, 65 A.L.R.3d 1284.
32-09.1-16. Minimum judgment.
No judgment may be rendered against a garnishee if the judgment against the defendant is less than twenty-five dollars, exclusive of costs, rather, the garnishee shall be discharged.
Source:
S.L. 1981, ch. 350, § 1.
32-09.1-17. Discharge not a bar.
If any person summoned as a garnishee is discharged, the judgment is no bar to an action brought by the defendant or other claimants against the garnishee for the same demand.
Source:
S.L. 1981, ch. 350, § 1.
32-09.1-18. Discharge from employment for garnishment or execution prohibited.
No employer may discharge any employee by reason of the fact that earnings have been subjected to garnishment or execution. If an employer discharges an employee in violation of this section, the employee may within ninety days of discharge bring a civil action for recovery of twice the wages lost as a result of the violation and for an order requiring reinstatement.
Source:
S.L. 1981, ch. 350, § 1.
32-09.1-19. Garnishments — Minimal amount — Disclosure.
If the amount required to be retained by the garnishee is less than ten dollars, the garnishee may not retain the sum but shall make the disclosures otherwise required, except as provided in section 32-09.1-21.
Source:
S.L. 1981, ch. 350, § 1; 2001, ch. 306, § 3.
32-09.1-20. Termination of garnishment.
A garnishee summons lapses and the garnishee is discharged of any liability upon the expiration of three hundred sixty days after the service of the summons, or a longer period of time either agreed to in writing by the plaintiff and the defendant or ordered by the court. Immediately upon the lapse of the garnishee summons, all earnings, money, property, and effects that the garnishee has been retaining pursuant to the garnishment must be returned to the defendant if the defendant is otherwise legally entitled to receipt of them.
Source:
S.L. 1981, ch. 350, § 1; 1999, ch. 302, § 2; 2003, ch. 278, § 3.
DECISIONS UNDER PRIOR LAW
Analysis
Default Judgment.
A default judgment against a defendant and garnishee, after becoming final, with payment by the garnishee, is conclusive against the defendant, and cannot be attacked in another action. Erker v. Deichert, 57 N.D. 474, 222 N.W. 615, 1928 N.D. LEXIS 151 (N.D. 1928).
Dismissal of Garnishment.
A garnishment is dismissed, where garnishee has made a return upon which no issue is taken and upon trial the facts established, which are consistent with the return, show that judgment should not be rendered against garnishee. Schmidt v. First Nat'l Bank, 60 N.D. 19, 232 N.W. 314, 1930 N.D. LEXIS 200 (N.D. 1930).
Moneys Deposited As Bail.
Moneys deposited with the district court clerk in lieu of a bail bond are not garnishable while so held. State v. Blum, 58 N.D. 549, 226 N.W. 694, 1929 N.D. LEXIS 249 (N.D. 1929).
32-09.1-21. Continuing lien on wages.
A plaintiff may obtain a two hundred seventy-day continuing lien on wages by garnishment. A plaintiff obtaining a continuing lien on wages by garnishment shall mark “continuing lien” on the caption of the garnishee summons. Each garnishment disclosure form must provide the garnishee will continue to hold the nonexempt portion of the defendant’s earnings as the earnings accrue through the last payroll period ending on or before two hundred seventy days from the effective date of the garnishee summons, or until the sum held equals the amount stated in the garnishee summons, or until the employment relationship terminates, whichever first occurs.
If the garnishee’s answers to a garnishment disclosure form provide the amount withheld is less than ten dollars, the garnishee is not required to return subsequent forms to the plaintiff until the amount withheld is ten dollars or more. For any pay period in which the garnishee is not required under this section to return the form to the plaintiff, the garnishee’s answers from the previous form remain in effect. At the expected termination of the lien, the plaintiff shall mail the garnishee an additional copy of the garnishment disclosure form upon which the garnishee within ten days shall make further disclosure.
Source:
S.L. 1981, ch. 350, § 1; 1995, ch. 328, § 1; 1999, ch. 302, § 3; 2001, ch. 306, § 4; 2003, ch. 278, § 4.
Notes to Decisions
In General.
The language of this section, read in conjunction with entire statutory scheme, establishes that if garnishment lien is created by service of garnishment summons, it lapses in one hundred and eighty days, unless plaintiff and defendant agree to longer time in writing or the court orders otherwise. Detroit Diesel Allison v. Heinze, 434 N.W.2d 352, 1989 N.D. LEXIS 4 (N.D. 1989).
Interpleader After Lapse of Garnishment.
Trial court erred in determining that interpleader action stopped further garnishment proceedings where interpleader action was not initiated until after garnishment action lapsed. Detroit Diesel Allison v. Heinze, 434 N.W.2d 352, 1989 N.D. LEXIS 4 (N.D. 1989).
Lapsed Garnishment.
Company failed to secure garnishment judgment under this section where garnishment lapsed one hundred and eighty days after service of garnishment summons, and nothing in record indicated that there was an agreement in writing between garnishment plaintiff and garnishment defendant or an order of court extending garnishment summons. Detroit Diesel Allison v. Heinze, 434 N.W.2d 352, 1989 N.D. LEXIS 4 (N.D. 1989).
No Indefinite Garnishment.
Argument that language, “garnishee summons lapses and garnishee is discharged of any liability”, released garnishee’s obligation to hold money but did not terminate garnishment lien failed; such interpretation created an indefinite garnishment lien which was inconsistent with time constraints and ordinary procedure for obtaining and executing on garnishment judgment under Ch. 32-09.1. Detroit Diesel Allison v. Heinze, 434 N.W.2d 352, 1989 N.D. LEXIS 4 (N.D. 1989).
Law Reviews.
Fresh Start Lien Avoidance Under the Bankruptcy Code Utilizing North Dakota Exemptions, 69 N.D. L. Rev. 203 (1993).
32-09.1-22. Claim of exemptions — How made.
When the defendant claims that the indebtedness or property, or a part thereof, is exempt from garnishment or from execution, the defendant, at or before twenty days after the service of the garnishee summons, shall file a schedule of all personal property subscribed and sworn to as provided in section 28-22-07.
Source:
S.L. 1981, ch. 350, § 1.
DECISIONS UNDER PRIOR LAW
Analysis
Claim for Exemption.
A claim for exemption in garnishment proceedings in justice court, to serve as a defense, must have been preceded by the filing of a schedule of the debtor’s personal property. Burcell v. Goldstein, 23 N.D. 257, 136 N.W. 243, 1912 N.D. LEXIS 91 (N.D. 1912).
The right to additional exemptions may be asserted by answer in a garnishment proceeding, or by demand and schedule after a levy on execution or under attachment. Jangula v. Bobb, 55 N.D. 279, 213 N.W. 27, 1927 N.D. LEXIS 34 (N.D. 1927).
A debtor who transfers all property not garnished to creditors to pay debts does not waive the right to claim property garnished as exempt. First Nat'l Bank v. Oliver, 55 N.D. 741, 214 N.W. 911, 1927 N.D. LEXIS 132 (N.D. 1927).
This section puts the defendant in the position of the garnishee and enables him to make any defense that the garnishee could make, including the defense that the property garnished is exempt from execution. Imperial Elevator Co. v. Warren, 56 N.D. 329, 217 N.W. 523, 1928 N.D. LEXIS 220 (N.D. 1928).
Default Judgment.
A default judgment against a defendant and garnishee, after becoming final, with payment by the garnishee, is conclusive against the defendant, and cannot be attacked in another action. Erker v. Deichert, 57 N.D. 474, 222 N.W. 615, 1928 N.D. LEXIS 151 (N.D. 1928).
32-09.1-23. Claim of exemptions — When heard.
In all cases when the defendant claims the debt or property garnished to be exempt, the claim of exemptions may be heard and determined by the court at any time after the claim is made, on three days’ notice to the plaintiff.
Source:
S.L. 1981, ch. 350, § 1.
DECISIONS UNDER PRIOR LAW
Dismissal.
Under the laws of this state, a garnishee action cannot be dismissed, in advance of trial, upon the motion of the defendant, supported by affidavit, on the ground that the averments of the affidavit for garnishment are untrue. Park, Grant & Morris v. Nordale, 41 N.D. 351, 170 N.W. 555, 1918 N.D. LEXIS 150 (N.D. 1918).
CHAPTER 32-10 Receivers
32-10-01. Receiver — When appointed.
A receiver may be appointed by the court in which an action is pending, or by a judge thereof:
- In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to the creditor’s claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and when it is shown that the property or fund is in danger of being lost, removed, or materially injured.
- In an action by a mortgagee for the foreclosure of the mortgage and sale of the mortgaged property, when it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the conditions of the mortgage have not been performed and that the property is probably insufficient to discharge the mortgage debt.
- After judgment, to carry the judgment into effect.
- After judgment, to dispose of the property according to the judgment or to preserve it during the pendency of an appeal, or in proceedings in aid of execution, when an execution has been returned unsatisfied, or when the judgment debtor refuses to apply the debtor’s property in satisfaction of the judgment.
- In the cases provided in this code, when a corporation or limited liability company has been dissolved, or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights, and in like cases within this state, of foreign corporations and of foreign limited liability companies.
- In all other cases in which receivers heretofore have been appointed by the usages of courts of equity.
Source:
C. Civ. P. 1877, § 219; R.C. 1895, § 5403; R.C. 1899, § 5403; R.C. 1905, § 6989; C.L. 1913, § 7588; R.C. 1943, § 32-1001; S.L. 1993, ch. 54, § 106.
Derivation:
Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 564.
Cross-References.
Banks, see N.D.C.C. ch. 6-07.
Consumer fraud and unlawful credit practices, see N.D.C.C. §§ 51-15-07, 51-15-08.
Corporations, see N.D.C.C. §§ 10-19.1-116, 10-19.1-117.
Municipal enterprises, see N.D.C.C. §§ 40-35-16, 40-35-17, 40-36-17.
Nonprofit corporations, see N.D.C.C. §§ 10-33-108, 10-33-109.
Supplementary proceedings to execution, see N.D.C.C. §§ 28-25-12 to 28-25-14.
Notes to Decisions
- Action Pending.
- Appeal.
- Court Monitor.
- Crops Planted by Trespasser.
- Dissolution of Partnership.
- Ex Parte Application.
- General Definition.
- Insolvent Corporation.
- Joint Ownership of Property.
- Judgment Debtor’s Property.
- Mortgage Foreclosure.
- Refusal to Appoint.
Action Pending.
Trial court erred in appointing receiver of bankrupt firm where no action was pending since “an appointment of receiver may only be made ancillary to an action brought”. In re Weisser Fin. Co., 169 N.W.2d 420, 1969 N.D. LEXIS 91 (N.D. 1969).
Appeal.
—Preservation of Property.
After an appeal has been perfected from a district court judgment, the district court may appoint a receiver to preserve the property in litigation. Olson v. Union Cent. Life Ins. Co., 58 N.D. 899, 228 N.W. 223, 1929 N.D. LEXIS 294 (N.D. 1929).
Court Monitor.
Court monitor, appointed by a trial court to observe and report actions of defendant bank during litigation, was not a “receiver” within North Dakota law, because the monitor did not take possession of any fund or property which was subject of litigation. Therefore, statutes applicable to receivers were inapplicable. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
The following functions, assigned by court to a monitor, were not those of a receiver: acting as a conduit during litigation by obtaining monthly reports from defendant bank about salaries, bonuses, expenditures, or loan write-offs in favor of bank’s shareholders, officers, or directors; attending meetings of board of directors; receiving minutes of those meetings; and forwarding all information and reports received from bank to court and to all counsel. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Crops Planted by Trespasser.
Where crops are planted by a trespasser who wrongfully assumes to hold possession and threatens to harvest and market the crops for his own benefit, the appointment of a receiver is proper. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).
Dissolution of Partnership.
An application for appointment of a receiver in an action to dissolve a partnership is addressed to the trial court’s discretion, and its ruling will be disturbed only for abuse thereof. Ingwalson v. Aney, 54 N.D. 627, 210 N.W. 498, 1926 N.D. LEXIS 71 (N.D. 1926).
Ex Parte Application.
Appointment of a receiver ex parte is not tolerated by the courts except in cases of the gravest emergency, and to prevent irreparable injury. Grandin v. La Bar, 2 N.D. 206, 50 N.W. 151, 1891 N.D. LEXIS 39 (N.D. 1891).
Where substantial rights are involved, receiver should not be appointed on an ex parte presentation. Grandin v. La Bar, 2 N.D. 206, 50 N.W. 151, 1891 N.D. LEXIS 39 (N.D. 1891); Glein v. Miller, 45 N.D. 1, 176 N.W. 113, 1920 N.D. LEXIS 103 (N.D. 1920).
General Definition.
A receiver is one who takes possession of and preserves, pendente lite, and for the benefit of the party ultimately entitled to it, fund or property in litigation. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Insolvent Corporation.
A receiver for an alleged insolvent corporation was improperly appointed under this section at the request of a creditor, seeking a money judgment, who had no lien on any property of the corporation or interest in any fund in its possession and showed no interest in any corporate property. Baird v. Agricultural Credit Corp., 64 N.D. 456, 253 N.W. 164, 1934 N.D. LEXIS 221 (N.D. 1934).
Joint Ownership of Property.
A receiver may be appointed in an action between partners, or others jointly owning or interested in property, on the application of the plaintiff, or of any party whose interest in the property is in danger of being lost, removed, or materially injured, and in all other cases where receivers heretofore have been appointed by the usages of courts of equity. Dale v. Duffy, 44 N.D. 33, 176 N.W. 97, 1919 N.D. LEXIS 231 (N.D. 1919).
A receiver may be appointed by the court, in which an action is pending between parties jointly interested in property, on the application of any party whose right or interest in the property or fund or proceeds thereof is probable, and when it is shown that the property or fund is in danger of being lost, removed or materially injured. Gunsch v. Gunsch, 69 N.W.2d 739, 1954 N.D. LEXIS 121, 1955 N.D. LEXIS 101 (N.D. 1954).
Judgment Debtor’s Property.
To entitle a judgment creditor to an order appointing a receiver of his debtor’s property, it must appear that the creditor in good faith has exhausted his remedies at law and, unless special circumstances excuse such course, execution must have been issued and returned unsatisfied. Minkler v. United States Sheep Co., 4 N.D. 507, 62 N.W. 594, 1895 N.D. LEXIS 47 (N.D. 1895).
Mortgage Foreclosure.
A court of equity has no authority to deprive a mortgagor of real property of the rents, use, and benefit of property until expiration of the period of redemption, by appointing a receiver. Farm Mortgage Loan Co. v. Pettet, 51 N.D. 491, 200 N.W. 497, 1924 N.D. LEXIS 55 (N.D. 1924); SMITH v. GRILK, 64 N.D. 163, 250 N.W. 787, 1933 N.D. LEXIS 263 (N.D. 1933).
Refusal to Appoint.
The refusal to appoint a receiver is warranted where it would have done plaintiffs no possible good, and would have done defendants great injury. Langer v. Fargo Mercantile Co., 43 N.D. 237, 174 N.W. 90, 1919 N.D. LEXIS 19 (N.D. 1919).
Collateral References.
Receivers 4, 29-64.
65 Am. Jur. 2d, Receivers, §§ 6 et seq.
Tort action, appointment of receiver at instance of plaintiff in, 4 A.L.R.2d 1278.
Effect of nonsuit, dismissal, or discontinuance of action upon previous order appointing receiver, 11 A.L.R.2d 1407.
Inspection of corporate books and records by stockholder for purpose of determining advisability of receivership, 15 A.L.R.2d 11.
Partnership: appointment of receiver in proceedings arising out of dissolution of partnership or joint adventure, otherwise than by death of partner or at instance of creditor, 23 A.L.R.2d 583.
Joinder: appointment of receiver as dependent upon prior obtaining of judgment, in view of Federal Civil Procedure Rule 18(b) and like state rules or statutes pertaining to joinder in a single action of two claims although one was previously cognizable only after the other had been prosecuted to a conclusion, 61 A.L.R.2d 688.
Foreign corporation, jurisdiction of action involving appointment of receiver for, 72 A.L.R.2d 1211.
Mortgagee’s right to receiver, 82 A.L.R.2d 1075.
Waste: what constitutes waste justifying appointment of receiver of mortgaged property, 55 A.L.R.3d 1041.
32-10-02. Who may be receiver — Undertaking by applicant.
No party or person interested in an action can be appointed receiver therein without the written consent of the opposing party filed with the clerk. If a receiver is appointed upon an ex parte application, the court before making the order may require from the applicant an undertaking with sufficient sureties in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant all damages the defendant may sustain by reason of the appointment of such receiver and the entry by the receiver upon the receiver’s duties, in case the applicant shall have procured such appointment wrongfully, maliciously, or without sufficient cause, and the court in its discretion at any time after said appointment may require an additional undertaking.
Source:
C. Civ. P. 1877, § 221; R.C. 1895, § 5404; R.C. 1899, § 5404; R.C. 1905, § 6990; C.L. 1913, § 7589; R.C. 1943, § 32-1002.
Derivation:
Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 566.
Notes to Decisions
Interested Party.
Appointment of bank, which was administrator of major stockholder’s estate, as receiver for dissolution of bankrupt firm, was error; this section requires consent of opposing parties before party interested in action may be appointed receiver. In re Weisser Fin. Co., 169 N.W.2d 420, 1969 N.D. LEXIS 91 (N.D. 1969).
Stockholder.
In action by judgment creditors to subject assets of corporation to payment of judgments and for a receivership, a stockholder of such corporation was not a proper person to act in the capacity of receiver. McKenzie v. Bismarck Water Co., 6 N.D. 361, 71 N.W. 608, 1897 N.D. LEXIS 23 (N.D. 1897).
Collateral References.
Receivers 48.
65 Am. Jur. 2d, Receivers, §§ 74-87.
32-10-03. Qualification of receiver.
Before entering upon the duties of receiver, the receiver must be sworn to perform them faithfully, and, with one or more sureties approved by the court or judge, must execute an undertaking to such person and in such sum as the court may direct, to the effect that the receiver will faithfully discharge the duties of receiver in the action and will obey the orders of the court therein.
Source:
C. Civ. P. 1877, § 222; R.C. 1895, § 5405; R.C. 1899, § 5405; R.C. 1905, § 6991; C.L. 1913, § 7590; R.C. 1943, § 32-1003.
Derivation:
Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 567.
Collateral References.
Receivers 50, 51.
65 Am. Jur. 2d, Receivers, §§ 74-87.
32-10-04. Powers.
The receiver, under the control of the court, has power to bring and defend actions in the receiver’s own name as receiver, to take and keep possession of the property, to receive rents, to collect debts, to compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize.
Source:
C. Civ. P. 1877, § 223; R.C. 1895, § 5406; R.C. 1899, § 5406; R.C. 1905, § 6992; C.L. 1913, § 7591; R.C. 1943, § 32-1004.
Derivation:
Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 568.
Notes to Decisions
Borrowing Money.
The receiver of an insolvent state bank may be authorized to borrow money by the district court. Baird v. Forbes State Bank, 64 N.D. 239, 251 N.W. 846, 1933 N.D. LEXIS 270 (N.D. 1933).
Duties.
A receiver is one who takes possession of and preserves, pendente lite, and for the benefit of the party ultimately entitled to it, fund or property in litigation. Vorachek v. Citizens State Bank, 461 N.W.2d 580, 1990 N.D. LEXIS 204 (N.D. 1990).
Possession of Property.
Upon the appointment of a receiver for an insolvent corporation, the title and right of possession of its property pass by operation of law to the receiver, as an officer of the court, for the use and benefit of the creditors. Brynjolfson v. Osthus, 12 N.D. 42, 96 N.W. 261, 1903 N.D. LEXIS 22 (N.D. 1903).
Collateral References.
Receivers 65 et seq.
66 Am. Jur. 2d, Receivers, §§ 128 et seq.
Gambling, succession of receiver to statutory right of action for recovery of money lost at, 18 A.L.R.2d 999, 1002.
Wage claims of employees of operating receiver, allowance of, 27 A.L.R.2d 720.
“Shop right rule” or license giving employer limited rights in employee’s inventions and discoveries, receiver as succeeding to rights under, 61 A.L.R.2d 356, 408.
Usury: corporate receiver as affected by statute denying defense of usury to corporation, 63 A.L.R.2d 924, 946.
Negligence in failing to care for or maintain property in receivership, receiver’s personal liability for, 20 A.L.R.3d 967.
Law Reviews.
Fresh Start Lien Avoidance Under the Bankruptcy Code Utilizing North Dakota Exemptions, 69 N.D. L. Rev. 203 (1993).
32-10-05. Investment of funds on consent.
Funds in the hands of a receiver may be invested upon interest by order of the court, but no such order can be made except upon the consent of all the parties to the action.
Source:
C. Civ. P. 1877, § 224; R.C. 1895, § 5407; R.C. 1899, § 5407; R.C. 1905, § 6993; C.L. 1913, § 7592; R.C. 1943, § 32-1005.
Derivation:
Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 569.
CHAPTER 32-11 Deposit
32-11-01. What subject to order of deposit.
When it is admitted by the pleadings or the examination of a party that the party has in the party’s possession or under the party’s control any money or other thing capable of delivery, which, being the subject of the litigation, is held by that party as trustee for another party or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party with or without security, subject to the further direction of the court.
Source:
C. Civ. P. 1877, § 225; R.C. 1895, § 5408; R.C. 1899, § 5408; R.C. 1905, § 6994; C.L. 1913, § 7593; R.C. 1943, § 32-1101.
Derivation:
Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 572.
Collateral References.
Deposits in Court 1-12.
23 Am. Jur. 2d, Deposits in Court, §§ 1 et seq.
Payment into court as affecting personal liability of executor or administrator for interest on legacies or distributive shares where payment is delayed, 18 A.L.R.2d 1384.
Interest, right of vendor to, where purchase money has been paid into court, 25 A.L.R.2d 951, 975.
Rights as between vendor and vendee under land contract in respect of interest as affected by payment into court, 25 A.L.R.2d 951, 975.
Condemnor’s right, as against condemnee, to interest on excessive money deposited in court or paid to condemnee, 99 A.L.R.2d 886.
Garnishment, funds deposited in court as subject to, 1 A.L.R.3d 936.
Appealability of order directing payment of money into court, 15 A.L.R.3d 568.
Condemnor’s right to appeal, payment or deposit of award in court as affecting, 40 A.L.R.3d 203.
32-11-02. Voluntary deposit in court of property adversely claimed.
Whenever two or more persons make claim for the whole or any part of the same money, personal property, or effects in the possession or control of any other person as bailee or otherwise, and the right of any such claimant is adverse to the right of any other claimant, or is disputed or doubtful, and the bailee, custodian, or person in control of any part of such property, money, or effects is unable to determine to whom the same rightfully belongs, or who is rightfully entitled to the possession thereof, or whenever such bailee, custodian, or person in control has notice or knowledge of any right or claim of right of any person in or to any part of such property, money, or effects adverse to the right of any other claimant therefor, or whenever any debt, money, property, or effects owing by or in the possession or under the control of any person may be attached by garnishment or other process, and there is any dispute as to who is entitled to the same or any part thereof, in any such case the person in the possession or control of any such property, money, or effects:
- If an action in any form has been commenced for or on account of, or growing out of the same, or in which the same has been attached as aforesaid, may pay such money or deliver such property or effects to the clerk of the court in which any such action having reference to said money, property, or effects, or the value thereof, may be pending, or out of which any garnishment or other process may issue with reference thereto.
- If no such suit is commenced, may apply to the district court of the district where such property, money, or effects may be situated, and upon showing to the satisfaction of the court the existence of facts bringing such person within the operation of this section, such court shall make an order designating a depositary with whom such property, money, or effects may be deposited by the applicant for such order.
In either case such person in the possession or control of such property, money, or effects at once shall notify personally or by registered or certified mail all persons of whose claims such person may have notice or knowledge, having or claiming any interest, property, lien, or right in, to, or upon such property, money, or effects, of such deposit, and upon giving such notice the person so depositing the same thereupon shall be relieved from further liability to any person on account of such property, money, or effects, but such depositor may be required upon the application of any party interested therein to appear and make disclosure before the court in which any such action may be pending or by which any order designating a depositor may be made concerning such property, money, debts, or effects held, controlled, or owed by the depositor. If the address of any persons having or making any claim as aforesaid cannot be ascertained, an affidavit to that effect shall be filed with the depositary, and the giving of such notice shall not be required in such case.
Source:
S.L. 1895, ch. 39, § 1; R.C. 1895, § 5409; R.C. 1899, § 5409; R.C. 1905, § 6995; C.L. 1913, § 7594; R.C. 1943, § 32-1102.
Cross-References.
Interpleader by substitution, see N.D.R.Civ.P. 22(b).
Notes to Decisions
Adverse Claimants.
Interpleader is appropriate only if there are two or more adverse claimants asserting interests in the fund or property held by the stakeholder. Kiker v. Walters, 482 N.W.2d 626, 1992 N.D. LEXIS 67 (N.D. 1992).
Liability for Conversion.
This section does not authorize a deposit of the money value of the property, after an action is brought, in discharge of the liability for conversion as of a prior date. McLaughlin v. Dodge Elevator Co., 43 N.D. 231, 174 N.W. 871, 1919 N.D. LEXIS 34 (N.D. 1919).
The refusal of a defendant elevator company to comply with the plaintiff’s demand to deliver stored grain precludes the defendant from claiming the right to make a deposit in court so as to be relieved from liability for conversion. Sand v. St. Anthony & D. Elevator Co., 49 N.D. 502, 191 N.W. 955, 1922 N.D. LEXIS 82 (N.D. 1922).
Sale of Crops.
This section applies to a controversy over a fund derived from a sale of crops raised on land leased under a cropper’s contract, and furnishes the method of procedure which relieves an innocent party from litigating the ownership of the fund as between different claimants. McKenzie v. Hopkins, 29 N.D. 180, 150 N.W. 881, 1915 N.D. LEXIS 3 (N.D. 1915).
32-11-03. Disobedience — Contempt.
Whenever in the exercise of its authority a court shall have ordered the deposit, delivery, or conveyance of money or other property and the order is disobeyed, the court, besides punishing the disobedience as for contempt, may make an order requiring the sheriff to take the money or property and deposit, deliver, or convey it in conformity with the direction of the court.
Source:
C. Civ. P. 1877, § 226; R.C. 1895, § 5410; R.C. 1899, § 5410; R.C. 1905, § 6996; C.L. 1913, § 7595; R.C. 1943, § 32-1103.
Derivation:
Wait’s (N.Y.) Code, 244; Harston’s (Cal.) Practice, 574.
32-11-04. Defendant’s admissions.
When the answer of the defendant expressly or by not denying admits part of the plaintiff’s claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or a provisional remedy.
Source:
C. Civ. P. 1877, § 227; R.C. 1895, § 5411; R.C. 1899, § 5411; R.C. 1905, § 6997; C.L. 1913, § 7596; R.C. 1943, § 32-1104.
Derivation:
Wait’s (N.Y.) Code, 244.
CHAPTER 32-12 Actions by and Against State
32-12-01. Action to annul patent — Duty of attorney general.
The state may bring an action to vacate or annul letters patent for lands granted by this state in any of the following cases:
- When they were obtained by means of a fraudulent suggestion or concealment of a material fact made by or with the knowledge or consent of the person to whom they were issued.
- When they were issued in ignorance of a material fact or through mistake.
- When the patentee, or those claiming under the patentee, have done or omitted an act in violation of the terms and conditions upon which the letters patent were granted, or by any other means have forfeited the interest acquired under the same.
Whenever the attorney general has good reason to believe that any act or omission specified in this section can be proved and that the person to be made defendant has no sufficient legal defense, the attorney general must commence such an action. Upon the rendition of a judgment vacating or annulling letters patent, the attorney general shall cause a copy of the judgment roll to be filed in the office of the secretary of state.
Source:
R.C. 1895, §§ 5752, 5783; R.C. 1899, §§ 5752, 5783; R.C. 1905, §§ 7360, 7391; C.L. 1913, §§ 7980, 8011; R.C. 1943, § 32-1201.
Notes to Decisions
School Lands.
The decision reached by the board of university and school lands in passing upon the validity of a contract for the sale of school lands, that such lands were not “coal lands” and therefore legally subject to sale was, in the absence of fraud or other evidence impugning the good faith of the board, final, and the title thereafter conveyed by a patent issued to the purchaser of such lands could not be defeated by subsequent discovery of a coal deposit therein. State v. Oster, 61 N.W.2d 276, 1953 N.D. LEXIS 93 (N.D. 1953).
Collateral References.
Public Lands 1641/2; States 190, 192, 202.
73B C.J.S. Public Lands, §§ 282-285.; 81A C.J.S. States, §§ 529-532, 577, 577, 558, 564.
32-12-02. Action against state — When authorized — Where brought — Undertaking for costs.
An action respecting the title to property, or arising upon contract, may be brought in the district court against the state the same as against a private person. Such actions shall be brought in the county in which the property is situated, or the county in which the plaintiff resides. The plaintiff at the time of commencing such action shall file an undertaking with sufficient surety to be approved by the clerk of court to the effect that the plaintiff will pay any judgment for costs that may be rendered against the plaintiff.
Source:
R.C. 1895, § 5929; R.C. 1899, § 5929; R.C. 1905, § 7547; C.L. 1913, § 8175; R.C. 1943, § 32-1202; S.L. 1979, ch. 107, § 4.
Notes to Decisions
- Constitutionality.
- Administrative Inspectors.
- Arising upon Contract.
- Breach of Warranty of Title.
- Consent to Suit.
- Contract Action.
- Damaged Property.
- Guaranty Fund Commission.
- Highway Construction Contract.
- Injunction.
- North Dakota Mill and Elevator Association.
- Service of Process.
- Taking Private Property for Public Use.
- Tax Refunds.
- Title to Property.
- Workers Compensation Award.
Constitutionality.
Suit challenging the constitutionality of N.D.C.C. § 32-12-02, which required a “cost bond” before suing the State in a contractual dispute, was dismissed because an individual claiming that the State Tax Commissioner denied him a refund for motor vehicle excise taxes lacked standing since he had not suffered an injury in fact where: (1) the Tax Commissioner did not deny the individual’s refund request, but merely requested that he complete and return the proper form; (2) the individual had not commenced an action under N.D.C.C. § 32-12-02, and thus he was never required to post a bond; and (3) even if he had commenced a state court action, it was uncertain whether there would have been a need for the filing of a surety bond. Dubois v. N.D. AG, 2004 U.S. Dist. LEXIS 23621 (D.N.D. Nov. 16, 2004).
Administrative Inspectors.
While under former N.D.C.C. §§ 65-12-03, 65-12-06 and 65-12-11 (see now N.D.C.C. chapter 26.1-22.1), boiler inspectors are required to inspect boilers and issue certificates of inspection and boiler owners are required to pay inspection fees, these rights and obligations do not create a contractual relationship between the inspectors and boiler owners; thus while failure to make a careful inspection may constitute a breach of duty under tort principals, it does not constitute a breach of any contractual promise or obligation. Schloesser v. Larson, 458 N.W.2d 257, 1990 N.D. LEXIS 139 (N.D. 1990), overruled, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).
There being no contractual obligation, express or implied, an action against boilers inspectors by boiler owner is not one arising under contract for which an action can be brought against the state under this section in third party complaint in suit by tenants against the owner. Schloesser v. Larson, 458 N.W.2d 257, 1990 N.D. LEXIS 139 (N.D. 1990), overruled, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994).
Arising upon Contract.
The state was the real party in interest, the action was not an action arising upon contract for which sovereign immunity has been waived under this section, and state could constitutionally raise sovereign immunity as a bar to plaintiff’s action where plaintiff brought action against state official in his official capacity only alleging direct causes of action under the federal and state constitutions and 42 USCS § 1983, claiming that failure to renew his position as branch manager of a state motor vehicle branch office was because of his political party affiliation and in violation of his constitutional and civil rights. Kristensen v. Strinden, 343 N.W.2d 67, 1983 N.D. LEXIS 438 (N.D. 1983).
Breach of Warranty of Title.
An action by purchaser at tax sale against county and state for negligence and for breach of warranty of title to the land, which was subject to a superior federal tax lien, was properly dismissed, on granting defendants’ motion for summary judgment since tax deed does not warrant the title it purports to convey as against encumbrances superior to the title which the state conveys. Heasley v. State, 115 N.W.2d 334, 1962 N.D. LEXIS 76 (N.D. 1962).
Consent to Suit.
Express authority to prosecute appeals in certain instances where claims have been denied by the workmen’s compensation bureau is not a consent to suit. Watland v. North Dakota Workmen’s Comp. Bureau, 58 N.D. 303, 225 N.W. 812 (1929), overruled on other grounds, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994), explained, Henderson v. Scott, 72 N.D. 616, 10 N.W.2d 490, 1943 N.D. LEXIS 100 (N.D. 1943).
The consent of the state to subject itself to suit does not embrace suits to recover damages for neglect of official duty. Watland v. North Dakota Workmen’s Comp. Bureau, 58 N.D. 303, 225 N.W. 812 (1929), overruled on other grounds, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994), explained, Henderson v. Scott, 72 N.D. 616, 10 N.W.2d 490, 1943 N.D. LEXIS 100 (N.D. 1943).
Contract Action.
By this section, the state has consented that it or its agencies, including a county, may be sued in cases “arising upon contract”, which includes an implied as well as an express contract. Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).
Suit not within express provisions of statute may not be brought against state but consent to be sued in cases arising upon contract includes implied as well as express contracts. Stark County v. State, 160 N.W.2d 101, 1968 N.D. LEXIS 100 (N.D. 1968).
The legislature has authorized suits against the state in cases “arising upon contract.” Livingood v. Meece, 477 N.W.2d 183, 1991 N.D. LEXIS 196 (N.D. 1991); Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 223, 1992 N.D. LEXIS 27 (N.D. 1992).
Damaged Property.
An action for damages to property caused by construction of a public improvement is an action “arising upon contract” even though no property is taken by the state. Northern Pac. R.R. v. Morton County, 131 N.W.2d 557 (N.D. 1964).
Guaranty Fund Commission.
A proceeding in equity by depositors in closed banks against depositors guaranty fund commission was not authorized by this section as it did not arise upon contract, express or implied. Wirtz v. Nestos, 51 N.D. 603, 200 N.W. 524, 1924 N.D. LEXIS 56 (N.D. 1924).
Highway Construction Contract.
This section was irrelevant to a dispute involving highway construction contract. Nelson Paving Co. v. Hjelle, 207 N.W.2d 225, 1973 N.D. LEXIS 176 (N.D. 1973).
Injunction.
An injunction may be granted against the enforcement of a tax by state officers. Wallace v. Hines, 253 U.S. 66, 40 S. Ct. 435, 64 L. Ed. 782, 1920 U.S. LEXIS 1476 (U.S. 1920).
North Dakota Mill and Elevator Association.
The state of North Dakota, doing business as the North Dakota Mill and Elevator Association, was subject to suit, in any transaction pertaining to the operation of such association for the breach of an obligation arising by operation of law as well as an obligation arising from contract. Bakken v. State, 56 N.D. 861, 219 N.W. 834, 1928 N.D. LEXIS 209 (N.D. 1928).
Service of Process.
A default judgment in an action against the state to quiet title, without service of process on the governor or attorney general, is of no force or effect. Company A, First Regiment N. G. T. S. v. State, 58 N.D. 66, 224 N.W. 661, 1929 N.D. LEXIS 183 (N.D. 1929).
Taking Private Property for Public Use.
Where the state, or an agency thereof, acting in a sovereign capacity, takes or damages private property for public use, the party aggrieved may bring an action in the courts to recover just compensation therefor. Jacobson v. State, 68 N.D. 259, 278 N.W. 652, 1938 N.D. LEXIS 104 (N.D. 1938).
Tax Refunds.
An action against the state for money had and received to recover excessive income taxes is an action “arising upon contract” within the statute authorizing an action against it. Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883, 1930 N.D. LEXIS 197 (N.D. 1930).
Title to Property.
The statute authorizes an action to be brought against the state where the title to property is involved. Delaney v. State, 42 N.D. 630, 174 N.W. 290, 1919 N.D. LEXIS 187 (N.D. 1919).
A complaint is sufficient as against demurrer by the state when it alleges that the state claims some interest in the land, inferior to the interest of the plaintiff, and demands that the state set forth a statement of its claims. Dunham Lumber Co. v. Gresz, 70 N.D. 455, 295 N.W. 500, 1940 N.D. LEXIS 193 (N.D. 1940), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632, 1994 N.D. LEXIS 202 (N.D. 1994); Brye v. Greenfield, 70 N.D. 597, 296 N.W. 746, 1941 N.D. LEXIS 205 (N.D. 1941).
An action to foreclose a mortgage on realty, in which the state claims an interest as owner of a portion thereof, is an action “respecting title to property” within this section. Johnson v. Brunner, 71 N.D. 446, 1 N.W.2d 871, 1942 N.D. LEXIS 78 (N.D. 1942).
Workers Compensation Award.
A workers compensation award is not a debt or judgment, or liability arising out of contract express or implied. It is an obligation imposed by law and arises out of the status or relationship existing between employer and employee. Effertz v. North Dakota Workers' Compensation Bureau, 481 N.W.2d 223, 1992 N.D. LEXIS 27 (N.D. 1992).
Collateral References.
States 111, 191, 193-197.
72 Am. Jur. 2d, States, Territories, and Dependencies, §§ 92 et seq.
81A C.J.S. States, §§ 311, 313-316, 320, 533-543, 549-556, 559-564.
Contract, tortious breach of contract as within consent by state to suit on, 1 A.L.R.2d 864.
Immunity from suit of governmental liquor control agency, 9 A.L.R.2d 1292.
Declaratory relief with respect to unemployment compensation as suit against state, 14 A.L.R.2d 826.
Maintainability of partition action where state owns an undivided interest in property, 59 A.L.R.2d 937.
Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.3d 678.
Right of one governmental subdivision to sue another such subdivision for damages, 11 A.L.R.5th 630.
Law Reviews.
Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).
For Article: Section 1983 Actions in North Dakota: An Empirical Study of Agency Policies and Law Enforcement and Correctional Officers, see84 N.D. L. Rev. 419 (2008).
32-12-03. Claim presented and refused before action brought.
No action upon a claim arising upon contract for the recovery of money only can be maintained against the state until the claim has been presented to the department, institution, agency, board, or commission to which claim relates for allowance and allowance thereof refused. The neglect or refusal of the office to act on such claim for a period of ten days after its presentation for allowance must be deemed a refusal to allow the claim.
Source:
R.C. 1895, § 5930; R.C. 1899, § 5930; R.C. 1905, § 7548; C.L. 1913, § 8176; R.C. 1943, § 32-1203; S.L. 1959, ch. 372, § 40; 1991, ch. 359, § 1.
Notes to Decisions
Applicability.
Because an action for retaliatory discharge based upon public policy sounds in tort, not contract, the notice-of-claim statute governing contract claims against the State of North Dakota, N.D.C.C. § 32-12-03, is inapplicable. Ghorbanni v. N.D. Council on the Arts, 2002 ND 22, 639 N.W.2d 507, 2002 N.D. LEXIS 25 (N.D. 2002).
Dismissal Without Prejudice.
Supreme court did not have jurisdiction to consider the appeal of Native Americans where the district court dismissed all plaintiffs except one from the action, “without prejudice,” because he was the only plaintiff who had complied with N.D.C.C. § 32-12-03, and the dismissal of the other plaintiffs was the only aspect of the order challenged on appeal, because dismissal without prejudice neither terminated the litigation in state court nor necessarily barred the action and claim for tax refunds under the statute of limitations. Mann v. ND Tax Comm'r, 2005 ND 36, 692 N.W.2d 490, 2005 N.D. LEXIS 38 (N.D. 2005).
Failure to Present Claim.
Because plaintiff’s claim for breach of his employment contract was subject to this provision, his failure to present his claim to the Board of Higher Education deprived the trial court of subject matter jurisdiction. Dimond v. State, 1999 ND 228, 603 N.W.2d 66, 1999 N.D. LEXIS 242 (N.D. 1999).
Written Claim.
Although this section does not expressly state that a claim be in written form, it does require that a claim be “presented.” There are sound reasons for construing the requirement of presentment to mean a claim must be in writing. Livingood v. Meece, 477 N.W.2d 183, 1991 N.D. LEXIS 196 (N.D. 1991).
Professor’s filing of an administrative appeal of university’s decision to terminate him did not satisfy this section’s requirement of presenting a written claim for money to the designated state entity. Messiha v. State, 1998 ND 149, 583 N.W.2d 385, 1998 N.D. LEXIS 165 (N.D. 1998).
Collateral References.
States 169-185, 197.
72 Am. Jur. 2d, States, Territories, and Dependencies, §§ 92 et seq.
81A C.J.S. States, §§ 467-480, 482, 484-486,489-493, 503-512, 515-520 524, 525, 528, 561-563.
Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions, 45 A.L.R.5th 109.
Persons or entities upon whom notice of injury or claim against state or state agencies may or must be served, 45 A.L.R.5th 173.
32-12-04. How judgment collected.
No execution may issue against the state on any judgment, but whenever a final judgment against the state has been obtained in any action other than an action under chapter 32-12.2, the clerk shall make and furnish to the office of the budget a duly certified copy of the judgment. After approval, and if funds have been appropriated therefor, the office of the budget, in due course, shall prepare and issue a warrant for the amount of such judgment and deliver the same to the person entitled thereto.
Source:
R.C. 1895, § 5931; R.C. 1899, § 5931; R.C. 1905, § 7549; C.L. 1913, § 8177; R.C. 1943, § 32-1204; S.L. 1959, ch. 372, § 41; 1973, ch. 110, § 2; 1995, ch. 329, § 6.
Note.
This section remained effective after July 31, 1997, upon the disapproval of chapter 648, S.L. 1995 (Senate Concurrent Resolution No. 4014), by Measure No. 2, November 5, 1996.
Section 22 of chapter 329, S.L. 1995 provides:
“If Senate Concurrent Resolution No. 4014 is approved by the fifty-fourth legislative assembly and the measure is approved by the voters, sections 1 through 4, 6 through 11, and section 15 of this Act are effective through July 31, 1997, and after that date are ineffective.”
Notes to Decisions
Appropriation for Payment.
Former § 186 of the constitution providing that no money shall be paid out of the state treasury except upon appropriation but containing a proviso excepting from its requirements funds allocated to the state highway department for construction, reconstruction, and maintenance of public roads, does not require a legislative appropriation before payment of a judgment against the state highway commission for damages resulting from the construction of highways. King v. Baker, 71 N.D. 125, 299 N.W. 247, 1941 N.D. LEXIS 145 (N.D. 1941); Ford Motor Co. v. Baker, 71 N.D. 298, 300 N.W. 435, 1941 N.D. LEXIS 169 (N.D. 1941).
Garnishment.
This section does not refer or apply to a direct garnishment proceeding ancillary to a suit against the Bank of North Dakota. Sargent County v. State, 47 N.D. 561, 182 N.W. 270, 1921 N.D. LEXIS 107 (N.D. 1921).
Collateral References.
States 213.
81A C.J.S. States, § 586.
Recovery of interest on claim against a governmental unit in absence of provision in contract or express statutory provision, 24 A.L.R.2d 928.
Law Reviews.
Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).
32-12-05. Claims resulting from year 2000 date change computer failures prohibited.
The state is not liable for a claim arising upon contract which is the result of the failure of any computer hardware or software, telecommunications network, or device containing a computer processor to interpret, produce, calculate, generate, or account for a date that is compatible with the year 2000 date change if the state has made a good-faith effort to make the computer hardware or software, telecommunications network, or device containing a computer processor compliant with the year 2000 date change. For the purposes of this section, the state is presumed to have made a good-faith effort to make the computer hardware or software, telecommunications network, or device containing a computer processor compliant with the year 2000 date change if the results of testing establish that the computer hardware or software, telecommunications network, or device containing a computer processor meets the compliance requirements of this section, or if the state has sought and received an assurance of compliance from the manufacturer or supplier, or if the state has sought an assurance of compliance from the manufacturer, supplier, government, or other reliable source when testing or receiving an assurance from the manufacturer or supplier of the computer hardware or software, telecommunications network, or device containing a computer processor is not practicable. For the purposes of this section, computer hardware or software, a telecommunications network, or device containing a computer processor is compliant with the year 2000 date change if:
- All stored dates or programs contain century recognition, including dates stored in databases and hardware or internal system dates in devices;
- The program logic accommodates same century and multicentury formulas and date values; and
- The year 2000 or any other leap year is correctly treated as a leap year within all program logic.
Source:
S.L. 1999, ch. 303, § 2.
CHAPTER 32-12.1 Governmental Liability
32-12.1-01. Legislative intent.
This chapter creates additional powers and optional and alternative methods for the single and specific purpose of enabling political subdivisions to pay and to compromise claims and judgments, to issue bonds to fund and satisfy the same, to levy taxes in amounts necessary for such purposes without respect to limitations otherwise existing, and to compromise judgments and make periodic payments on such compromised amount.
Source:
S.L. 1977, ch. 303, § 1.
Cross-References.
Payment and compromise of judgments against municipalities, see N.D.C.C. ch. 40-43.
Notes to Decisions
Governmental Tort Immunity Abolished.
The doctrine of governmental immunity from tort liability is abolished, and governmental bodies, other than state government, are subject to suit for damages by individuals injured by negligent or wrongful acts or omissions of their agents and employees, whether engaged in a proprietary or governmental function. Kitto v. Minot Park Dist., 224 N.W.2d 795, 1974 N.D. LEXIS 133 (N.D. 1974).
Limited Liability.
This chapter and its predecessor, were enacted to limit the liability imposed upon political subdivisions by the decision in Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D. 1974), overruled in part, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994). O'Fallon v. Pollard, 427 N.W.2d 809, 1988 N.D. LEXIS 188 (N.D. 1988).
Ordinary Acts of Negligence.
Where injuries are sustained by a nonpaying recreational user, N.D.C.C. ch. 53-08 precludes liability against the political subdivision for ordinary acts of negligence by its employees which relate to the condition of the property; unless the political subdivision, through its employees, has committed a willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity on the property, the political subdivision is not liable. Fastow v. Burleigh County Water Resource Dist., 415 N.W.2d 505, 1987 N.D. LEXIS 427 (N.D. 1987).
Purpose.
The obvious purpose of this chapter is to limit exposure to potential liability. The reduced three-year period for commencing an action under the chapter furthers this purpose. In effect, the three-year statute of limitations is the legislatively imposed quid pro quo for the liability provided by this chapter. Olson v. University of N. Dakota, 488 N.W.2d 386, 1992 N.D. LEXIS 144 (N.D. 1992).
Upon remand of the case to the trial court, the trial court under the authority of N.D.C.C. § 1-02-39 could consider the factors listed in that statute to determine the appropriate limitations period to be applied to the lessees’ contract claims against the political subdivision. The trial court needed to do so because it applied the wrong limitations period to determine that the contract claims were barred against the political subdivision, especially given the legislature’s intent under N.D.C.C. § 32-12.1-01 that claims against political subdivisions be treated separately from claims against the state, that tort claims as recognized by the factors set forth in N.D.C.C. § 32-12.1-02, that state tort liability was separate from political subdivision liability as contemplated under N.D.C.C. § 32-12.2-01, and that the legislature had provided a “catch-all” limitations provision for actions against only the state and its employees under N.D.C.C. § 28-01-22.1. Finstad v. Ransom-Sargent Water Users, Inc., 2011 ND 215, 812 N.W.2d 323, 2011 N.D. LEXIS 216 (N.D. 2011).
Collateral References.
Liability of governmental entity to builder or developer for negligent issuance of building permit subsequently suspended or revoked, 41 A.L.R.4th 99.
State’s liability to one injured by improperly licensed driver, 41 A.L.R.4th 111.
Governmental tort liability for failure to provide police protection to specifically threatened crime victim, 46 A.L.R.4th 948.
Liability of governmental entity for damage to motor vehicle or injury to person riding therein resulting from collision between vehicle and domestic animal at large in street or highway, 52 A.L.R.4th 1200.
Insufficiency of notice of claim against municipality as regards statement of place where accident occurred, 69 A.L.R.4th 484.
Municipal liability for negligent fire inspection and subsequent enforcement, 69 A.L.R.4th 739.
Liability of municipality or other governmental unit for failure to provide police protection from crime, 90 A.L.R.5th 273.
Claims arising from governmental conduct causing damage to plaintiff’s real property as within discretionary function exception of Federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 167 A.L.R. Fed. 1.
Liability of United States for failure to warn of danger or hazard not directly created by act or omission of federal government and not in national parks as affected by “discretionary function or duty” exception to 169 A.L.R. Fed. 421.
Liability of United States for failure to warn of danger or hazard resulting from governmental act or omission as affected by “discretionary function or duty” exception to Federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 170 A.L.R. Fed. 365.
Liability of United States for failure to warn local police or individuals of discharge, release, or escape of person who is deemed dangerous to public as affected by “discretionary act or duty” exception to Federal Tort Claims Act, Federal Tort Claims Act, 171 A.L.R. Fed. 655.
Claims arising from conduct of governmental employer in administering or failing to administer medical care as within discretionary function exception of Federal Tort Claims Act (28 U.S.C.A. § 2680(a)), 172 A.L.R. Fed. 407.
Liability of United States, under Federal Tort Claims Act (28 U.S.C.A. §§ 1346, 2680), for damages caused by ingestion or administration of government-approved drugs, vaccines, and medications, 173 A.L.R. Fed. 431.
Construction and application of Federal Tort Claims Act (FTCA) exception in 28 U.S.C.A. § 3680(c), concerning claims arising in respect of assessment or collection of any tax or customs duty, or detention of goods or merchandise by any officer of customs or excise or any other law-enforcement officer, 173 A.L.R. Fed. 465.
Law Reviews.
Municipal Corporations — Governmental Immunity — Political Subdivisions Liable for Non-Discretionary Tortious Conduct, 51 N.D. L. Rev. 885 (1975).
Summary of significant decisions rendered by North Dakota Supreme Court in 1989 relating to government immunity and liability, 65 N.D. L. Rev. 574 (1989).
32-12.1-02. Definitions.
As used in this chapter, unless the context otherwise requires:
- “Claim” means any claim permitted by this chapter brought against a political subdivision for an injury caused by a political subdivision or an employee of the political subdivision acting within the scope of the employee’s employment or office.
- “Commissioner” means the insurance commissioner.
- “Employee” means any officer, employee, board member, volunteer, or servant of a political subdivision, whether elected or appointed and whether or not compensated. The term does not include an independent contractor, or any person performing tasks the details of which the political subdivision has no right to control.
- “Injury” means personal injury, death, or property damage.
- “Personal injury” includes bodily injury, mental injury, sickness, or disease sustained by a person, and injury to a person’s rights or reputation.
-
“Political subdivision”:
- Includes all counties, townships, park districts, school districts, cities, public nonprofit corporations, administrative or legal entities responsible for administration of joint powers agreements, and any other units of local government which are created either by statute or by the Constitution of North Dakota for local government or other public purposes, except no new units of government or political subdivisions are created or authorized by this chapter.
- Does not include nor may it be construed to mean either the state of North Dakota or any of the several agencies, boards, bureaus, commissions, councils, courts, departments, institutions, or offices of government which collectively constitute the government of the state of North Dakota.
- “Property damage” includes injury to or destruction of tangible or intangible property.
- “Public nonprofit corporation” means a nonprofit corporation that performs a governmental function and is funded, entirely or partly, by the state, a city, county, park district, school district, or township.
Source:
S.L. 1977, ch. 303, § 2; 1987, ch. 405, § 1; 1989, ch. 412, § 1; 1995, ch. 329, § 7; 2005, ch. 299, § 1; 2007, ch. 291, § 1.
Notes to Decisions
Injury.
A personal injury, as contemplated by this chapter, includes physical injuries, disease, sickness, mental anguish and suffering; however, in order to recover for mental anguish and suffering, there must be a direct causal connection between the alleged injuries and the acts of the political subdivision which are not discretionary. McCroskey v. Cass County, 303 N.W.2d 330, 1981 N.D. LEXIS 255 (N.D. 1981).
Upon remand of the case to the trial court, the trial court under the authority of N.D.C.C. § 1-02-39 could consider the factors listed in that statute to determine the appropriate limitations period to be applied to the lessees’ contract claims against the political subdivision. The trial court needed to do so because it applied the wrong limitations period to determine that the contract claims were barred against the political subdivision, especially given the legislature’s intent under N.D.C.C. § 32-12.1-01 that claims against political subdivisions be treated separately from claims against the state, that tort claims as recognized by the factors set forth in N.D.C.C. § 32-12.1-02, that state tort liability was separate from political subdivision liability as contemplated under N.D.C.C. § 32-12.2-01, and that the legislature had provided a “catch-all” limitations provision for actions against only the state and its employees under N.D.C.C. § 28-01-22.1. Finstad v. Ransom-Sargent Water Users, Inc., 2011 ND 215, 812 N.W.2d 323, 2011 N.D. LEXIS 216 (N.D. 2011).
Collateral References.
State’s liability for personal injuries from criminal attack in state park, 59 A.L.R.4th 1236.
Tort liability of public authority for failure to remove parentally abused or neglected children from parents’ custody, 60 A.L.R.4th 942.
State and local government liability for injury or death of bicyclist due to defect or obstruction in public bicycle path, 68 A.L.R.4th 204.
Municipal liability for negligent performance of building inspector’s duties, 24 A.L.R.5th 200.
Law Reviews.
Case Comment: Schools — District Liability: Political Subdivision Liability and School Duties Prevail Over Recreational Use Immunity: M.M. v. Fargo Public School District No. 1, 2010 ND 102, 783 N.W.2d 806, see 86 N.D. L. Rev. 689 (2010).
32-12.1-03. Liability of political subdivisions — Limitations. [Effective through June 30, 2022]
- Each political subdivision is liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope of the employee’s employment or office under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances in which the political subdivision, if a private person, would be liable to the claimant. The enactment of a law, rule, regulation, or ordinance to protect any person’s health, safety, property, or welfare does not create a duty of care on the part of the political subdivision, its employees, or its agents, if that duty would not otherwise exist.
- The liability of political subdivisions under this chapter is limited to a total of two hundred fifty thousand dollars per person and one million dollars for any number of claims arising from any single occurrence regardless of the number of political subdivisions, or employees of such political subdivisions, which are involved in that occurrence. A political subdivision may not be held liable, or be ordered to indemnify an employee held liable, for punitive or exemplary damages.
-
A political subdivision or a political subdivision employee may not be held liable under this chapter for any of the following claims:
- A claim based upon an act or omission of a political subdivision employee exercising due care in the execution of a valid or invalid statute or regulation.
- The decision to undertake or the refusal to undertake any legislative or quasi-legislative act, including the decision to adopt or the refusal to adopt any statute, charter, ordinance, order, regulation, resolution, or resolve.
- The decision to undertake or the refusal to undertake any judicial or quasi-judicial act, including the decision to grant, to grant with conditions, to refuse to grant, or to revoke any license, permit, order, or other administrative approval or denial.
- The decision to perform or the refusal to exercise or perform a discretionary function or duty, whether or not such discretion is abused and whether or not the statute, charter, ordinance, order, resolution, regulation, or resolve under which the discretionary function or duty is performed is valid or invalid.
- Injury directly or indirectly caused by a person who is not employed by the political subdivision.
-
A claim relating to injury directly or indirectly caused by the performance or nonperformance of a public duty, including:
- Inspecting, licensing, approving, mitigating, warning, abating, or failing to so act regarding compliance with or the violation of any law, rule, regulation, or any condition affecting health or safety.
- Enforcing, monitoring, or failing to en